North Dakota proceeding-obstruction solicitation guide
Soliciting Obstruction of Proceedings in North Dakota
North Dakota Century Code § 12.1-10-06 is a short statute with a demanding cross-reference. It makes soliciting another person to commit one of four groups of proceeding-related offenses a class A misdemeanor: witness nonappearance or nonproduction, refusal to testify after a formal direction and warning, intentional or reckless disruption of a proceeding, or disobedience of specified judicial orders. A defensible analysis must identify the exact request, the intended recipient, the incorporated offense, the facts needed to make that offense possible, and the culpability required under North Dakota’s general rules. A vague allegation that someone asked another person to “cause trouble” does not do that work.
You will work directly with me.
If you hire me, I begin with the exact words said, written, sent, or relayed and the offense the State claims you asked someone else to commit. I compare the full communication, recipient’s account, subpoena or order, court record, proceeding timeline, privilege issue, recordings, device and account evidence, intermediaries, later conduct, and charging language. The issue is not whether a request sounded improper in hindsight; it is whether the evidence proves a willful solicitation of one complete incorporated offense.
The solicitation and the intended predicate must both be identified
| Proof question | What the current text requires | What should be tested |
|---|---|---|
| Actor | A person accused of soliciting another | Identity, authorship, account or device control, and whether an intermediary altered the message |
| Solicitation | The accused “solicits” another; § 12.1-10-06 does not supply a special definition, and no published North Dakota Supreme Court merits construction was located | Exact words, audience, context, seriousness, conditional language, whether the message sought action, and the instruction defining “solicits” in the actual case |
| Recipient | Another person | Who received the request, whether it reached that person, and what the recipient understood |
| Object | An offense defined in §§ 12.1-10-02 through 12.1-10-05 | Which predicate, theory, order, privilege, proceeding, direction, warning, or disruptive act the State selected |
| Culpability | Willfulness supplied by § 12.1-02-02 when the offense text does not specify culpability | Whether conduct was intentional, knowing, or reckless as to the solicitation and relevant circumstances |
| Classification | Class A misdemeanor | Current ceiling, offense-date law, and whether the sentence is being confused with a predicate’s special penalty |
The statute does not say that every conversation about a subpoena, testimony, courtroom behavior, or injunction is criminal. Advice to seek counsel, file a motion, assert a valid privilege, request accommodation, obey an order through an authorized method, or behave lawfully does not become solicitation merely because a proceeding is involved. The State must connect the accused’s communication to conduct that, if carried out with the predicate’s required facts, would constitute one of the listed offenses.
The object matters at the pleading stage. A charge that does not identify whether the alleged request concerned nonappearance, refusal to answer, disruption, or order disobedience can obscure essential distinctions. The complaint, probable-cause affidavit, bill of particulars if available, discovery, instructions, and verdict form should be compared for notice, election, duplicity, and unanimity.
What was requested?
Use the complete communication, not an investigator’s paraphrase or one extracted sentence.
Which predicate?
Match the request to every element and defense in one of §§ 12.1-10-02 through 12.1-10-05.
Which state of mind?
Test willfulness, knowledge of the proceeding or order, and whether the message genuinely sought prohibited action.
Which evidence?
Preserve native messages, recordings, metadata, court records, subpoena service, orders, privilege rulings, and recipient accounts.
Each incorporated offense has facts that cannot be skipped
1. Soliciting witness nonappearance, nonproduction, departure, or refusal to be sworn
Section 12.1-10-02 has two main settings. The first begins with a person lawfully ordered to appear at a specified time and place to testify or produce information in an official proceeding. Without lawful privilege, failure to appear or produce at that time and place is a class A misdemeanor. The second begins with a person already attending an official proceeding who, without lawful privilege, fails to obey a lawful order to occupy or remain at the designated witness place, or to be sworn or make an equivalent affirmation.
A § 12.1-10-06 allegation built on this predicate should identify the subpoena or order, lawful issuance and service, specified time and place, information demanded, proceeding, recipient’s role, privilege, and requested noncompliance. Asking a witness to reschedule through counsel, obtain a ruling, preserve an objection, or seek to quash an improper subpoena is not the same as soliciting unlawful nonappearance. The defense in § 12.1-10-02 for qualifying prevention or inability, and the separate defense for compliance before the failure substantially affected the proceeding, can affect whether the requested conduct would be the incorporated offense.
2. Soliciting refusal to testify
Section 12.1-10-03 is not triggered by every reluctance to answer. For a legislative proceeding, the question must be pertinent; the person must continue refusing after the presiding officer directs an answer and advises that continued refusal may lead to criminal prosecution. In another official proceeding, the person must continue refusing after a court or judge directs or orders an answer and gives the specified warning. Lawful privilege remains part of the text.
The solicitation case therefore turns on more than “do not talk.” It may require the question, pertinence, privilege assertion, ruling, direction, warning, continued refusal, and the accused’s knowledge of those circumstances. Advice to invoke the Fifth Amendment until a judge rules, consult counsel, answer truthfully, or seek immunity is materially different from asking someone to defy a post-ruling command. Section 12.1-10-03 also recognizes a defense for compliance before the refusal substantially affected the proceeding.
3. Soliciting intentional or reckless hindering by disorderly conduct
Section 12.1-10-04 covers intentionally hindering an official proceeding by noise, violent or tumultuous behavior, or disturbance as a class A misdemeanor, and recklessly hindering it by the same listed means as a class B misdemeanor. A solicitation charge should identify which culpability theory the requested actor was to take, what noise or behavior was requested, which proceeding was to be hindered, and how the proposed conduct related to hindrance.
Peaceful attendance, criticism, lawful demonstration, courtroom observation, or ordinary disagreement is not automatically one of the listed means. Context still matters: location, volume, duration, warnings, court access, actual proceeding activity, security response, and the speaker’s words can distinguish advocacy from a request to create a disturbance. Section 12.1-10-06 classifies its own offense as a class A misdemeanor even when the alleged predicate is reckless hindering, which § 12.1-10-04 classifies as a class B misdemeanor.
4. Soliciting disobedience or resistance to a qualifying judicial order
Section 12.1-10-05 requires a lawful temporary restraining order, preliminary or final injunction, or other final order—other than an order for payment of money—of a North Dakota court, plus disobedience or resistance. The State should identify the order, issuing court, finality or qualifying type, clarity, scope, service or notice, act requested, and how that act would violate the order. A proposal to appeal, move to modify, request clarification, seek a stay, or use a lawful exception is not itself a request to disobey.
Section 12.1-10-05 permits a court sentencing a person convicted under that section to impose a fine in an amount deemed just notwithstanding § 12.1-32-01. Section 12.1-10-06 separately declares the solicitation offense a class A misdemeanor and does not repeat that special fine language. The unlimited-fine clause should not be presented as automatically governing the solicitation conviction.
The specific misdemeanor must be read on its own terms
North Dakota also has a general criminal-solicitation offense in § 12.1-06-03. That provision applies when a person commands, induces, entreats, or otherwise attempts to persuade another to commit a particular felony, with intent to promote or facilitate it, under strongly corroborative circumstances, and the person solicited commits an overt act in response. It grades general solicitation one class below the solicited felony and contains its own defenses and incapacity rule.
Section 12.1-10-06 is different. Its objects are the proceeding offenses in §§ 12.1-10-02 through 12.1-10-05, all misdemeanors under the current text, and it expressly classifies the special solicitation offense as a class A misdemeanor. Section 12.1-06-05 says that when “attempt” or “conspiracy” is made an offense outside chapter 12.1-06, those words carry the chapter definitions; it does not say the same for solicitation. Without controlling authority, a responsible guide should not graft § 12.1-06-03’s felony-object, strongly-corroborative-circumstances, overt-act, grading, or defense language onto § 12.1-10-06.
The statute uses “solicits” without defining a special form
The prosecution should prove more than description, prediction, sympathy, abstract advocacy, sarcasm, quotation, venting, or agreement after the fact. Exact wording and context matter. “You should ask your lawyer whether you must appear” is not the same as “ignore the subpoena.” “I hope the hearing is postponed” is not necessarily a request to disrupt it. A statement can be implicit, conditional, coded, or delivered through an intermediary, but those are factual possibilities rather than a judicially settled element list for § 12.1-10-06. The inference that the accused sought the predicate act must rest on evidence. Because no published North Dakota Supreme Court merits opinion directly defining the term for this section was located, the charging language and proposed jury instruction deserve particular scrutiny.
Completion of the predicate is not written into § 12.1-10-06
The special statute says a person is guilty if the person solicits another to commit a listed offense. It does not expressly require that the recipient agree, commit an overt act, or complete the requested offense. At the same time, later conduct can be powerful evidence of what an ambiguous conversation meant and whether the recipient understood it as a request. The defense should resist both extremes: completion should not be invented as an element, and the recipient’s conduct should not automatically prove the accused’s words or purpose.
Willfulness must be analyzed element by element
Section 12.1-10-06 states no culpability term and does not expressly create strict liability. Under § 12.1-02-02, the default is willfully, meaning intentionally, knowingly, or recklessly. Except where otherwise provided, required culpability applies to conduct and attendant circumstances. That makes knowledge of an order, subpoena, witness status, proceeding, warning, or other predicate circumstance potentially important. The charging instruction and offense-date authority must be reviewed rather than assuming that mere negligence is enough.
Protected advice and advocacy require careful separation
Lawyers, family members, advocates, journalists, and ordinary citizens may discuss court proceedings. The First Amendment does not protect intentionally procuring criminal obstruction, but the statute should not be stretched to punish protected advice, criticism, petitioning, or association. The defense may need to address whether the communication genuinely requested an unlawful act, whether the predicate was clearly defined, and whether a proposed construction would chill lawful counsel or speech.
How I test words, authorship, recipient understanding, and the predicate offense
1. Preserve the complete communication
Texts, email, direct messages, call recordings, voicemail, letters, group chats, social posts, disappearing-message exports, video, and face-to-face witness accounts should be preserved in native form when lawfully available. The beginning and end of a thread, attachments, replies, emoji, edits, audience, delivery receipts, time zone, and quoted material can change meaning. A screenshot may omit precisely the language that distinguishes legal advice from a request to disobey.
2. Separate account ownership from authorship
A phone number, subscriber record, display name, or device association does not necessarily prove who composed a message. Shared devices, linked accounts, administrators, spoofing, compromised credentials, scheduled messages, and forwarded material can matter. Device possession, IP records, tokens, writing style, location, contemporaneous activity, recipient history, admissions, and corroborating events may strengthen or weaken attribution.
3. Identify the recipient and any intermediary
The State should prove who was solicited and how the message reached that person. If a third party relayed it, the record should show what the accused said, what the intermediary transmitted, what was changed, and whether the accused intended delivery. An intermediary’s embellishment or independent suggestion cannot automatically become the accused’s solicitation.
4. Obtain the subpoena, order, question, warning, or proceeding record
The predicate often depends on documents and courtroom events. Rule 17 governs criminal subpoenas, including commands to attend, testify, and produce designated items. Certified orders, returns of service, hearing audio, transcripts, minutes, docket entries, written warnings, privilege rulings, and courtroom video may establish—or contradict—the legal circumstances assumed in a police report.
5. Build a two-person timeline
The timeline should track what the accused knew and did alongside what the recipient knew and did. Include service, notice, court appearances, questions, rulings, warnings, messages, meetings, planned acts, compliance, disruption, reports, searches, and interviews. An instruction before a person was served or before a judge rejected a privilege claim presents different knowledge evidence from a request after formal notice.
6. Compare recipient interpretation with the actual words
The recipient may testify that a statement felt like a command or joke. That interpretation is evidence, not a substitute for the message. Relationship, authority, prior dealings, payment, threats, secrecy, repeated requests, expected benefit, and later confirmation can influence meaning. So can pressure from investigators, promises, cooperation agreements, memory gaps, or motives to shift responsibility.
7. Use discovery and authentication precisely
Rule 16 reaches covered statements, data, documents, objects, tests, expert summaries, and other discoverable material, with continuing duties. Rule 901 requires enough evidence to support a finding that an exhibit is what the proponent claims. Rule 1001 defines writings, recordings, photographs, electronically stored information, originals, and duplicates. Authentication can establish that an exhibit is genuine; it does not by itself prove authorship, willfulness, or the object of an ambiguous communication.
8. Review searches and interviews
For seized devices or provider accounts, review the warrant affidavit, probable cause, particularity, scope, execution, extraction, filtering, and later searches. For statements, compare reports with recordings for custody, Miranda, invocation, voluntariness, translation, question wording, and omissions. Agreeing that a proceeding was inconvenient is not necessarily admitting a willful request to commit one of the four predicates.
9. Preserve evidence without creating a new allegation
Do not delete communications, alter an account, contact a witness about testimony, instruct anyone to avoid process, or violate an order while trying to investigate. Preservation through counsel, lawful downloads, subpoenas, discovery requests, and court process can protect the record without generating a separate tampering or obstruction claim.
A defense should identify the missing solicitation or predicate element
No request to commit an offense
The complete words may show advice, a question, prediction, criticism, lawful planning, sarcasm, or an unrelated request rather than procurement of criminal conduct.
Wrong author or altered message
Account association, a cropped screenshot, an intermediary’s paraphrase, or a recipient’s memory may not prove the accused authored the alleged solicitation.
No willfulness
Mistake, lack of knowledge about a subpoena, order, privilege ruling, proceeding, warning, or recipient status can undermine intentional, knowing, or reckless solicitation.
No complete predicate theory
The requested act may lack a lawful order, specified time or place, pertinent question, required warning, listed disturbance, official proceeding, or qualifying judicial order.
Lawful privilege or statutory defense
A valid privilege, qualifying inability, or timely compliance may defeat the incorporated offense and change whether the alleged request sought criminal conduct.
Protected speech or lawful advocacy
Seeking legal advice, filing a motion, requesting accommodation, criticizing proceedings, or advocating lawful action must be separated from intentional procurement of obstruction.
Other issues can include multiplicity for repeated messages, duplicity when several predicates are placed in one count, unanimity, venue, hearsay, confrontation, accomplice liability, entrapment, privilege, suppression, the corpus of a recorded conversation, and overlap with witness tampering, evidence tampering, conspiracy, contempt, or order-violation offenses. Each neighboring charge has independent elements.
No published North Dakota Supreme Court merits decision directly construing § 12.1-10-06 was identified in the official-opinion search rechecked on October 30, 2026. The North Dakota Judiciary Committee’s archived criminal-code report describes the predecessor provision as one of several specific offenses protecting the smooth operation of judicial proceedings. That history can illuminate purpose, but it is not a substitute for current text or controlling precedent. Later authority and offense-date law must be checked before advice or filing.
The short solicitation provision dates to the 1973 criminal-code enactment
Chapter 116 of the 1973 Session Laws enacted § 12.1-10-06 in materially the same short form: a class A misdemeanor for soliciting another to commit an offense defined in §§ 12.1-10-02 through 12.1-10-05. That textual continuity does not mean every historical allegation is governed by today’s law. The provision incorporates four other statutes, so a change to any predicate can change what conduct the solicitation charge reaches even if § 12.1-10-06 itself is unchanged.
Preserve the then-effective version of every incorporated predicate
For an older allegation, counsel should preserve the solicitation section and the versions of §§ 12.1-10-02, 12.1-10-03, 12.1-10-04, and 12.1-10-05 in force on the alleged communication date. That includes the then-existing official-proceeding definition, lawful-privilege language, direction and warning requirements, hindering theories, covered judicial orders, statutory defenses, and classifications. Current predicate language cannot be used to fill a historical gap or remove an earlier defense.
The general Class A misdemeanor ceiling changed in 2017
House Bill 1269 changed the maximum imprisonment term from one year to 360 days while retaining the $3,000 fine ceiling. Section 12.1-10-06 states no offense-specific mandatory minimum. The unlimited-fine language in § 12.1-10-05 applies by its text to a defendant sentenced under that order-disobedience section; it is not repeated in the separate solicitation offense.
A course of messages may require more than one legal snapshot
If alleged solicitations span a statutory amendment, a new order, a privilege ruling, service of process, or a formal warning, each message should be mapped to the law and facts existing when it was sent. Later noncompliance can illuminate meaning, but it cannot retroactively create a subpoena, lawful order, required warning, or culpable request that did not exist at the communication time.
The special solicitation offense is a class A misdemeanor
| Issue | Current rule | Important qualification |
|---|---|---|
| Classification | Class A misdemeanor under § 12.1-10-06 | The special statute fixes its own class rather than adopting § 12.1-06-03’s next-lower grading rule |
| Ordinary maximum | Up to 360 days, a $3,000 fine, or both | The maximum is not a sentence prediction |
| Mandatory minimum | No universal minimum incarceration term stated in § 12.1-10-06 | Offense-date law and other proven convictions or conditions still require review |
| Predicate special fine | Section 12.1-10-05 allows a fine in an amount deemed just for a conviction under that section | Section 12.1-10-06 does not repeat that exception; do not automatically transfer it to solicitation |
| Related exposure | Facts may support separate tampering, conspiracy, contempt, order-violation, or obstruction allegations | Every additional charge requires its own elements and permissible unit of prosecution |
Sentencing can turn on the importance and stage of the proceeding, clarity and persistence of the request, use of payment or pressure, whether a subpoenaed person or vulnerable witness was targeted, threatened delay or harm, actual effect, prompt withdrawal or corrective action, cooperation, history, compliance with conditions, and other statutory sentencing considerations. The class ceiling does not require jail in every case.
Possible collateral consequences include employment or licensing review, immigration consequences, restrictions on witness contact or courthouse access, probation communication conditions, and reputational harm. None should be described as automatic without reviewing the person, disposition, sentence, and current collateral-consequence law.
Frequently asked questions
What must the State say I asked another person to do?
The alleged request must seek an offense defined in §§ 12.1-10-02 through 12.1-10-05. The State should identify nonappearance or related witness noncompliance, refusal to testify after required process, listed disruptive hindering, or disobedience of a qualifying judicial order.
Must the other person actually obstruct the proceeding?
Section 12.1-10-06 does not expressly require completion or an overt act. Later conduct may prove meaning and intent, but the special statute’s text should not be replaced with § 12.1-06-03’s different felony-solicitation requirements.
Does the general criminal-solicitation statute control?
Not automatically. Section 12.1-06-03 covers solicitation of a particular felony and contains added requirements and grading. Section 12.1-10-06 specifically covers four misdemeanor predicate groups and sets a class A misdemeanor.
Can advice to assert a privilege be charged?
Lawful privilege is part of §§ 12.1-10-02 and 12.1-10-03. Advising someone to obtain a ruling or lawfully assert a privilege is different from asking the person to defy a lawful post-ruling direction or order.
What if the subpoena or order was invalid?
The predicates require lawful orders or a qualifying lawful judicial order. Issuance, jurisdiction, scope, service, notice, clarity, finality, privilege, and available exceptions can be central.
Can a message through someone else count?
It can if the evidence proves the accused caused or intended the intermediary to deliver a request to commit a listed offense. What the accused said and what the intermediary actually conveyed must be separated.
What is the current maximum penalty?
The offense is a class A misdemeanor, with a current ceiling of 360 days’ imprisonment, a $3,000 fine, or both. Section 12.1-10-06 states no universal mandatory minimum.
What should I preserve?
Preserve the complaint, full communications, native account exports, recordings, subpoena or order, service records, hearing audio or transcript, privilege rulings, witness information, device-access facts, and a private timeline. Do not contact witnesses about testimony or delete material.
A lawyer’s file review of Soliciting Obstruction of Proceedings in North Dakota
Most bad early advice comes from answering the charge label instead of reading the charging clause. I begin with the operative count and work outward: definitions, exceptions, enhancement facts, evidence, procedure, and only then possible outcomes.
Read the count as a set of propositions the State must prove
A careful review of Soliciting Obstruction of Proceedings in North Dakota begins with N.D.C.C. §§ 12.1-10-02 through 12.1-10-06 and 12.1-02-02 and the precise theory alleged in the complaint. The legal label may suggest a level of seriousness, but it cannot replace proof of the conduct, mental state, result, status, relationship, value, injury, prior event, or other circumstance the chosen provision requires.
I organize the evidence around those requirements instead of reading the police narrative as a finished story. Each proposition should lead to a source, and each source should be checked for context, reliability, and admissibility. This makes it easier to see what is genuinely disputed, what information is still missing, and which legal issue could produce a meaningful remedy.
The evidence I would ask for first
For Soliciting Obstruction of Proceedings in North Dakota, I would not begin with a canned list of defenses. I would begin with the source file: the charging paper, every police report, uncut recordings, witness interviews, warrants and returns, device and account records, photographs with metadata, expert or laboratory material, certified prior records, court orders, and any document the prosecution relies on to prove an element or increase the classification. A police summary can identify what an officer or witness says happened, but it cannot substitute for the recording, photograph, data, or document being summarized. The same is true of a complaint. It identifies the prosecution’s theory at the start of the case; it does not prove the theory.
I put those materials on one chronology. That lets me see what was known at each decision point, which account was contemporaneous, what appeared only after people spoke with one another, and where the record is silent. It also keeps an admissibility question separate from a factual one. A fact can be disputed even if the evidence was lawfully obtained. Evidence can also be accurate yet inadmissible for a particular purpose. Those are different arguments and should not be blurred together.
Read the charging document against the offense date
The alleged date matters because statutes, penalty thresholds, definitions, sentencing rules, and published decisions change. I save the version in force on that date and read the session-law history when the current online text is different. I also check whether a later amendment was merely clarifying or made a substantive change; that is a legal question, not an assumption. The same discipline applies to prior convictions and administrative events. A prior must fit the definition the charged statute actually uses, fall within any stated lookback period, and be proved by a reliable record.
I then compare the formal count with the probable-cause narrative and the discovery. If the prosecution’s theory shifts, I want the amended pleading and enough detail to prepare. If several factual alternatives are alleged, I identify whether they are separate elements, alternative means, enhancement facts, or merely evidentiary details. That distinction affects notice, motions, jury instructions, unanimity arguments, and how a verdict form should be read.
Separate an evidentiary weakness from a suppression issue
Not every troubling fact produces a motion to suppress. Suppression ordinarily requires a constitutional, statutory, or rule-based violation with a remedy that reaches the evidence at issue. A weak identification, an incomplete investigation, or a witness inconsistency may be powerful at trial without making evidence inadmissible. By contrast, a stop, search, interrogation, identification procedure, warrant, or test can raise a legal issue even when the resulting evidence appears incriminating. I analyze both tracks and do not promise dismissal simply because one problem exists.
For a search issue, I reconstruct what officers knew before each intrusion and what authority they claimed. For a statement, I examine custody, questioning, warnings, voluntariness, recording, and the complete context. For scientific or technical evidence, I request the method, underlying data, quality-control material, uncertainty information, and chain of custody. For hearsay or confrontation questions, I identify the actual statement, its purpose, the declarant, and the proposed foundation. Specificity matters; “the evidence is bad” is not a motion.
Prepare negotiation and trial at the same time
A plea decision should be compared with the case the State could present at trial, not with the complaint’s maximum penalty in isolation. I want to know the strongest admissible proof, the weakest required element, the realistic motion practice, the likely instructions, and the consequences of every proposed disposition. That includes custody, probation, treatment, restitution, driving, firearm restrictions, registration, employment or licensing, immigration consultation, family-court effects, and record consequences when they are actually triggered. I avoid telling a client that every collateral consequence applies to every conviction.
Trial preparation gives negotiation its credibility. Witness interviews, exhibit review, motions in limine, expert consultation, demonstrative evidence, jury instructions, and a clean theory of the case force both sides to confront what can be proved. Negotiation can continue while that work is underway. The two tracks are not opposites.
A case-law point worth keeping in its proper place
Appellate decisions matter, but a quotation should not be detached from the issue the court was deciding. In State v. Hartson, 2024 ND 78, ¶ 26, the North Dakota Supreme Court explained that, on a sufficiency challenge, “we do not weigh conflicting evidence, or judge the credibility of witnesses.” That is an appellate-review rule, not a reduction of the State’s burden at trial. At trial, the prosecution still must prove every element beyond a reasonable doubt. I cite the case for the point it actually decided and then return to the charged statute, the instructions, and the admissible evidence in the present file.
What I would want you to understand before choosing an outcome
You should be able to identify the exact charge, the facts that set its level, the disputed elements, the evidence that matters most, the motions that have a legal basis, the realistic trial issues, and the concrete effect of each proposed resolution. If an answer depends on a missing report, recording, expert opinion, or certified record, I will say so. An honest answer about what remains unknown is more useful than a confident guess.