RULE 9. WARRANT OR SUMMONS UPON INDICTMENT OR INFORMATION
Upon the request of the prosecuting attorney the
The court shall must issue
a an arrest warrant of arrest for each defendant
named in the indictment or information, if
it is supported by a showing of probable cause as required in Rule 4(a). , or in the indictment,
except that The court need not issue a warrant need not be
issued for any defendant who has
been held to answer for any offense charged. The court, after After a
showing of probable
cause, shall the court may issue a summons instead of a warrant
upon on its own motion or
at the request of the prosecuting attorney. Upon On like request or on
its own motion, the
court shall may issue more than one warrant or summons for the same
defendant. The court
must issue the arrest warrant or summons shall be delivered to the sheriff
or other person
authorized by law to execute or serve it. If the a defendant fails to
appear in response to a
summons, the court must issue a warrant shall issue.
(1) Warrant. The
form of the warrant shall be as provided
in warrant must conform to Rule
4(b)(1) except that it shall must be signed by the clerk, describe the
offense charged in the
indictment or information, and command that the defendant be arrested and brought before
the court. The court may fix the amount of bail may be fixed by the
court and endorsed
endorse it on the warrant.
(2) Summons. The summons
shall must be in the same form as
the a warrant except that it
shall summon must require the defendant to appear before the court at
a stated time and
(c) Execution or Service; and Return.
(1) Execution or Service. The warrant
shall must be executed or
the summons served as
provided in Rule 4(c)(1) and (2).
The officer executing a warrant shall make return thereof to the court.
request of the prosecuting attorney any unexecuted warrant shall be returned and canceled.
On or before the return day the person to whom a summons is delivered for service shall
make return thereof. At the request of the prosecuting attorney made while the indictment
or information is pending, a warrant returned unexecuted and not canceled, or a summons
returned unserved, or a copy thereof, may be delivered by the clerk to a peace officer for
execution or service. A warrant or summons must be returned in accordance with
Rule 9 was amended, effective March 1, 2006.
Rule 9 is an adaptation of Fed.R.Crim.P. 9, and provides for the issuance of a warrant or
summons upon indictment or information.
A summons should be issued unless there is
reason to believe that the accused will not appear. The Fourth Amendment provides that
Warrants shall issue, but upon probable cause supported by oath or affirmation, and
particularly describing * * * persons * * * to be seized." If an indictment has been returned,
the Fourth Amendment is satisfied and the warrant can issue on request without more, since
the indictment is made on the oath of the grand jury. The provision for showing of the
"probable cause" as required in Rule 4(a) makes explicit the fact that a warrant or summons
can issue on the basis of an information only if the information or affidavit filed with the
information shows probable cause for the arrest warrant or summons. Generally, prosecution
on information has as a prerequisite a determination of probable cause at a preliminary
examination. Exceptions are listed in N.D.C.C. § 29-09-02.
Subdivision (b) incorporates by reference the provisions of Rule 4(b) concerning the form
of the warrant or summons. The minor differences reflect the different stage in the
proceeding at which the warrant or summons is being issued. The warrant upon an
indictment or information must be signed by the clerk
[In re Markel, 195 F.Supp. 926
Mich. 1961), where the court relied on Fed.R.Crim.P. 9(b)(1), by analogy to hold that the
warrant for arrest of bankrupt is invalid if not signed by the clerk] and must describe the
offense charged in the indictment or information. The amount of bail may be fixed by the
court and endorsed on the warrant. [See Rule 46 .
(Release from Custody). ]
Subsection (c)(1) incorporates by reference portions of Rule 4(c) dealing with the execution of a warrant and service of a summons.
Subsection (c)(2), dealing with return, is virtually the same as Rule 4(d), providing for return of a warrant or summons issued on the complaint. At the request of the prosecuting attorney, any unexecuted warrant must be returned and canceled. On or before the return day, the person to whom a summons was delivered for service must make a return to the court.
Rule 9 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, page 26;
23-25, 1972, pages 16-20; May 15-16, 1969, page 7; May 3-4, 1968, page 7; Fed.R.Crim.P.
; Proposed Amendment, Preliminary Draft, 48 F.R.D. 575 (1970); Wright, Federal
and Procedure: Criminal, § 151-153 (1969); 8 Moore's Federal Practice, Chapter 9
(Cipes, 2d Ed. 1970); Barron, Federal Practice and Procedure: Criminal, § 1941-1943
(1951); A.B.A. Standards for Criminal Justice, Standards Relating to Function of the Trial
Judge, § 3.1 (Approved Draft, 1968).
SUPERSEDED: N.D.C.C. §§ 29-12-03, 29-12-04, 29-12-06, 29-12-08.
CROSS REFERENCES: N.D.R.Crim.P. 4 (Arrest
Warrant or Summons Upon Complaint);
N.D.R.Crim.P. 46 (Release from Custody); N.D.C.C. § 29-09-02 (Prosecution on
Information--In what cases).
*Generally, prosecution on information has as a prerequisite a determination of
cause at a preliminary examination. Under N.D.C.C. § 29-09-02, however, an
information can be filed during a term of court without preliminary examination if the
offense charged is committed during the term of the district court in and for the county in
which the offense is committed or triable. The language of Rule 9 is intended to provide for