RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE
1 (a) General.
2 (1) Appearance Upon an Arrest. An officer or other person making an arrest
3 must take the arrested person without unnecessary delay before the nearest
4 available magistrate.
5 (2) Arrest Without a Warrant. If an arrest is made without a warrant, the
6 magistrate must promptly determine whether probable cause exists under Rule
7 4(a). If probable cause exists to believe that the arrested person has committed a
8 criminal offense, a complaint or information must be filed in the county where the
9 offense was allegedly committed. A copy of the complaint or information must be
10 given within a reasonable time to the arrested person and to any magistrate before
11 whom the arrested person is brought, if other than the magistrate with whom the
12 complaint or information is filed.
13 (b) Statement by the Magistrate at the Initial Appearance.
14 (1) In All Cases. The magistrate must inform the defendant of the
16 (A) the charge against the defendant and any accompanying affidavit;
17 (B) the defendant's right to remain silent; that any statement made by the
18 defendant may later be used against the defendant;
19 (C) the defendant's right to the assistance of counsel before making any
20 statement or answering any questions;
21 (D) the defendant's right to be represented by counsel at each and every
22 stage of the proceedings;
23 (E) if the offense charged is one for which counsel is required, the
24 defendant's right to have legal services provided at public expense to the extent
25 that the defendant is unable to pay for the defendant's own defense without undue
26 hardship; and
27 (F) the defendant's right to be admitted to bail under Rule 46.
28 (2) Felonies. If the defendant is charged with a felony, the magistrate must
29 inform the defendant also of:
30 (A) the defendant's right to a preliminary
31 (B) the defendant's right to the assistance of counsel at the preliminary
33 (C) that a defendant who is not a United States citizen may request that an
34 attorney for the state or a law enforcement officer notify a consular officer from
35 the defendant's country of nationality that the defendant has been arrested.
36 (3) Misdemeanors. If the defendant is charged with a misdemeanor, the
37 magistrate must inform the defendant also of the defendant's right to trial by jury in
38 all cases as provided by law and of the defendant's right to appear and defend in
39 person or by counsel.
40 (c) Right to Preliminary
41 (1) Waiver.
42 (A) If the offense charged is a felony, the defendant has the right to a
examination hearing. The defendant may
waive the right to
examination hearing at the initial
appearance if assisted by counsel.
45 (B) If the defendant is assisted by counsel and waives preliminary
examination hearing and the magistrate is a judge of the
district court, the
47 defendant may be permitted to plead to the offense charged in the complaint or
48 information at the initial appearance.
49 (C) If the defendant waives preliminary
hearing and does not
50 plead at the initial appearance, an arraignment must be scheduled.
51 (D) The magistrate must admit the defendant to bail under the provisions of
52 Rule 46.
53 (2) Non-waiver. If the defendant does not waive preliminary
54 hearing, the defendant may not be called upon to plead to a felony offense at the
55 initial appearance. A magistrate of the county in which the offense was allegedly
56 committed must conduct the preliminary
hearing. The magistrate
57 admit the defendant to bail under the provisions of Rule 46.
58 (d) Reliable Electronic Means. Contemporaneous audio or audiovisual
59 transmission by reliable electronic means may be used to conduct an appearance
60 under this rule as permitted by N.D. Sup. Ct. Admin. R 52.
61 (e) Uniform Complaint and Summons.
62 (1) In General. Notwithstanding Rule 5(a), a uniform complaint and
63 summons may be used in lieu of a complaint and appearance before a magistrate,
64 whether an arrest is made or not, for an offense that occurs in an officer's presence
65 or for a motor vehicle or game and fish offense. An individual held in custody
66 must be brought before a magistrate for an initial appearance without unnecessary
68 (2) Duty of Prosecuting Attorney. When a uniform complaint and summons
69 is issued for a felony offense, the prosecuting attorney must also subsequently file
70 a complaint or information that complies with Rule 5(a). If the prosecuting
71 attorney after review declines to prosecute a charge that has been filed with the
72 court on a uniform complaint and summons, a dismissal of the charge must be
73 stated on the complaint or information or filed separately with the court.
74 EXPLANATORY NOTE
75 Rule 5 was amended effective March 1, 1990; January 1, 1995; March 1,
76 2006; June 1, 2006; March 1, 2010; August 1, 2011; March 1, 2016; March 1,
78 Rule 5 is derived from Fed.R.Crim.P. 5. Rule 5 is designed to advise the
79 defendant of the charge against the defendant and to inform the defendant of the
80 defendant's rights. This procedure differs from arraignment under Rule 10 in that
81 the defendant is not called upon to plead.
82 Subdivision (a) provides that an arrested person must be taken before the
83 magistrate "without unnecessary delay." Unnecessary delay in bringing a person
84 before a magistrate is one factor in the totality of circumstances to be considered in
85 determining whether incriminating evidence obtained from the accused was given
87 Subdivision (a) was amended, effective January 1, 1995, to clarify that a
88 "prompt" judicial determination of probable cause is required in warrantless arrest
90 Subdivision (b) is designed to carry into effect the holding of Miranda v.
91 Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).
92 Because the Miranda rule is constitutionally based, it applies to all officers
93 whether state or federal. One should note that the protections required by Miranda
94 apply as soon as a person "has been taken into custody or otherwise deprived of his
95 freedom of action in any significant way," while the requirement that an accused
96 be taken before a magistrate is applicable only to an "arrested person." The
97 Miranda decision is based upon the Fifth Amendment privilege against
98 self-incrimination, and holds that no statement obtained by interrogation of a
99 person in custody is admissible, unless, before the interrogation begins, the
100 accused has been effectively warned of the accused's rights, including the right not
101 to answer questions and the right to have counsel present.
102 Subdivision (b) specifies the action which must be taken by the magistrate.
103 Subparagraphs (b)(1)(A), (b)(1)(B), and (b)(1)(C) are stated by Miranda to be
104 absolute prerequisites to interrogation and cannot be dispensed with on even the
105 strongest showing that the person in custody was aware of those rights.
106 Paragraph (b)(1) was amended, effective June 1, 2006, to remove a
107 reference to court appointment of counsel for indigents. Courts ceased appointing
108 counsel for indigents on January 1, 2006, when the North Dakota Commission on
109 Legal Counsel for Indigents became responsible for defense of indigents.
110 Paragraph (b)(2) provides an additional requirement to the instructions
111 given by the magistrate in paragraph (b)(1) when the charge is a felony. It requires
112 the magistrate to inform the defendant of the right to a preliminary
113 hearing. The Sixth Amendment right to counsel applies to a preliminary
examination hearing granted under state law because
the preliminary examination
115 hearing is a critical stage of the state's criminal process.
116 Paragraph (b)(2) was amended, effective March 1, 2016, to require the
117 defendant in a felony case to be informed at the initial appearance of the right of a
118 defendant who is not a U.S. citizen to request that a consular officer be informed
119 of the defendant's arrest. This amendment was based on the December 1, 2014
120 amendment to Fed.R.Crim.P. 5.
121 Subdivisions (b) and (c) were amended, effective March 1, 1990. The
122 amendments track the 1987 amendments to Fed.R.Crim.P. 5, which are technical
123 in nature, and no substantive change is intended.
124 Subdivision (c) was amended, effective January 1, 1995, in response to
125 elimination of county courts and to ensure that a defendant is not called upon to
126 waive the preliminary
examination hearing or to plead
without the assistance of
127 counsel at the initial appearance.
128 Subdivision (d) was amended, effective March, 1, 2004, to permit the use of
129 interactive television to conduct initial proceedings. Subdivision (d) was amended,
130 effective March 1, 2006, to reference N.D.Sup.Ct.Admin.R. 52, which governs
131 proceedings conducted by interactive television. Subdivision (d) was further
132 amended, March 1, 2016, to allow the use of contemporaneous audio or
133 audiovisual transmission by reliable electronic means to conduct initial
135 Subdivision (e) was added, effective March 1, 2010, to provide a procedure
136 for using the uniform complaint and summons. Statutory provisions governing the
137 uniform complaint and summons, which is commonly referred to as the "uniform
138 citation," are in N.D.C.C. §§ 20.1-02-14.1 and 29-05-31.
139 Subdivision (e) was amended, effective March 1, 2016, to require the
140 prosecuting attorney to file a written dismissal if the prosecuting attorney decides
141 not to pursue a charge filed with the court on a uniform complaint and summons.
142 Rule 5 was amended, effective March 1, 2006, in response to the December
143 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and
144 organization of the rule were changed to make the rule more easily understood and
145 to make style and terminology consistent throughout the rules.
146 Rule 5 was amended, effective August 1, 2011, to include new language
147 indicating that either "the complaint or information" can be used as a charging
148 document. N.D.C.C. § 29-04-05 was amended in 2011 to specify that "A
149 prosecution is commenced when a uniform complaint and summons, a complaint,
150 or an information is filed or when a grand jury indictment is returned."
151 Rule 5 was amended, effective March 1, 2017, to replace the term
152 "preliminary examination" with "preliminary hearing" throughout the rule.
153 SOURCES: Joint Procedure Committee Minutes of May 12-13, 2016, page
154 29; September 24-25, 2015, page 15; April 23-24, 2015, pages 14-15; April 28-29,
155 2011, pages 17-18; May 21-22, 2009, pages 2-10; April 27-28, 2006, pages 2-5,
156 15-17; January 29-30, 2004, pages 22-23; September 26-27, 2002, pages 12-13;
157 January 27-28, 1994, pages 3-5; September 23-24, 1993, pages 4-7; April 20,
158 1989, page 4; December 3, 1987, page 15;February 22-23, 1973, page 18; March
159 23-24, 1972, pages 2-3, 11-12; January 27, 1972, pages 17-22; November 21-22,
160 1969, pages 2, 8-9, 17-19; May 3-4, 1968, pages 1-2; January 26-27, 1968, pages
162 STATUTES AFFECTED:
163 SUPERSEDED: N.D.C.C. §§ 29-05-04, 9-05-11, 29-05-17, 29-05-19,
164 29-07-01, 29-07-02, 29-07-04, 29-07-05, 29-07-07, 29-07-08, 29-07-09, 29-07-10,
165 33-12-07, 33-12-09.
166 CONSIDERED: N.D.C.C. §§ 20.1-02-14.1, 29-04-05, 29-05-31, 29-07-03,
167 29-07-06, 40-18-15, 40-18-16, 40-18-18.
168 CROSS REFERENCES: N.D.R.Crim.P. 5.1 (Preliminary
169 hearing); N.D.R.Crim.P. 10 (Arraignment); N.D.R.Crim.P. 35 (Correcting or
170 Reducing a Sentence); N.D.R.Crim.P. 43 (Defendant's Presence); N.D.R.Crim.P.
171 44 (Right to and Assignment of Counsel); N.D.Sup.Ct.Admin.R. 52
172 (Contemporaneous Transmission by Reliable Electronic Means).