RULE 5.1. PRELIMINARY EXAMINATION
(a) Probable Cause Finding. If the magistrate finds
it appears from the
evidence there is
probable cause to believe an offense has been committed and the defendant committed the
offense, an arraignment must be scheduled. The finding of probable cause may be based
upon on hearsay evidence in whole or in part. The defendant may
witnesses and may introduce evidence. The magistrate may receive evidence that would be
inadmissible at the trial.
(b) Discharge of the Defendant. If the magistrate hears
the evidence on behalf
of the respective parties , in a preliminary examination, if it
appears and finds either a public
offense has not been committed , or there is not sufficient cause to believe the
guilty of the offense, the magistrate shall must discharge
order the defendant to be
(c) Record. A verbatim record of the proceedings in the preliminary hearing must be
under the direction of the magistrate if a request for a record is made by either the State or
the defendant. Upon request of either party, a copy of the transcript of the record of
proceedings must be furnished to the defendant and to the State state.
If a transcript is
requested by the defendant, the cost of the transcript and related costs must be borne by the
state if the magistrate finds the defendant is financially unable to pay for the transcript
without undue hardship.
Rule 5.1 was amended, effective February 12, 1982 on an emergency basis; May 20, 1982, March 1, 1990; January 1, 1995; March 1, 1998; March 1, 2006.
The function of the preliminary examination is to determine whether there is probable cause to hold the accused for further action.
Subdivision (c) was amended, effective March 1, 2006, to require a verbatim record of preliminary hearing proceedings.
Rule 5.1 was amended, effective January 1, 1995, to conform with the structure of the state judiciary and the elimination of county courts.
Rule 5.1 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of January 29-30, 2004,pages 23-24; January 30, 1997, page 12; January 27-28, 1994, pages 5-8 September 23-24, 1993, pages 3-4 and 7-8; April 20, 1989, page 4; December 3, 1987, page 15; March 23-25, 1972, pages 3, 13-15; November 20-21, 1969, pages 8-9, 17-19; May 3-4, 1968, page 2.
SUPERSEDED: N.D.C.C. §§ 29-07-11, 29-07-12, 29-07-15, 29-07-16, 29-07-17, 29-07-18, 29-07-19, 29-07-20, 29-07-21, 29-07-22, 29-07-23, 29-07-24, 29-07-25, 29-07-26, 29-07-27, 29-07-28, 29-07-29, 29-07-30, 29-07-31, 29-07-32.
CONSIDERED: N.D.C.C. §§ 29-07-01.1, 29-07-13, 29-07-14.
CROSS REFERENCES: N.D.R.Crim.P. 5 (Initial Appearance Before the Magistrate); N.D.R.Crim.P. 10 (Arraignment); N.D.R.Crim.P. 12 (Pleadings and Motions Before Trial; Defenses and Objections).