M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate
Under Rule 5, a criminal defendant charged with a felony has a right to a preliminary examination. The defendant may waive this right, but not until after the defendant has obtained the assistance of counsel.
Judge Racek has suggested that making preliminary examinations non-mandatory would improve the working of the criminal case processing system. In a telephone conversation, Judge Racek explained that, in Cass County, the vast majority of preliminary examinations are waived (24 out of every 25). He said that Cass County blocks off a period of time every week for holding preliminary examinations, and that (typically) any waiver of preliminary examination that occurs does not happen until a proceeding that takes place the day before the preliminary examination block. He said that having a last-minute mass waiver of preliminary examinations creates wasted time for the court system and public defenders.
Judge Racek said that the purpose of preliminary examinations is to determine whether probable cause exists to try a criminal defendant. He said that most preliminary examinations in Cass County are waived because all informations issued in Cass County are supported by affidavits of probable cause. He said that arrest warrants are also issued in most Cass County criminal cases. Therefore, he said, probable cause is established and information on charges is made available to the defendant well before the preliminary examination date.
Judge Racek said he understands that the defense bar will likely resist making preliminary examinations non-mandatory. He said that some jurisdictions are slow to release information about the charges or to file essential papers and affidavits. He said he knows that sometimes (in places other than Cass County) defense attorneys have to go to a preliminary examination just to find out what happened and the specifics of the accusations against the defendant.
Judge Racek maintained that, in general, a preliminary examination is simply a pro-forma proceeding. He indicated that they usually don't occur, and that when they do occur, usually little is accomplished. He said that having them is a waste of time both for the courts and public defenders, and that without them, the court system would be able to better use the time currently blocked out for the preliminary examination and the waiver proceeding. He said that, rather than requiring preliminary examinations and allowing waiver, a better system to would be to allow preliminary examinations only when requested.
The North Dakota Supreme Court suggested in State v. Kunkel, 366 N.W.2d 799 (N.D. 1985) that the preliminary examination is not just a pro-forma requirement. The Kunkel court explained that, at a preliminary examination, "an accused may cross-examine witnesses testifying against him and may introduce evidence in his own behalf." The court said that "this important procedural device should not be hastily disregarded as a mere formality, as it provides, among other things, an opportunity to fashion a vital impeachment tool for use in cross-examination of the State's witnesses at trial and a means by which counsel can more effectively discover the State's case and make possible the preparation of a proper defense to meet that case at trial."
Nonetheless, it has been long established that a criminal defendant does not have a constitutional right to a preliminary examination. State v. Finlayson, 41 N.D. 77, 169 N.W. 581 (1918). Instead, prior to the adoption of the criminal rules, Ch. 29-07, N.D.C.C., contained a preliminary examination requirement. Currently, Rule 5(c) sets out the "right to preliminary examination" and Rule 5.1 details preliminary examination procedure. Most of Ch. 29-07 has been superseded by Rules 5 and 5.1, both of which are subject to amendment by the Supreme Court.
In North Dakota, a defendant has the right to have an attorney's assistance when making the decision whether to decline a preliminary examination. It seems likely that the advantages described by Judge Racek would be limited if the proposed rule changes create a situation where attorneys and/or defendants always request preliminary examinations (to protect the defendant's rights) and then later withdraw their requests (once more information is gathered). If the Committee accepts Judge Racek's proposition that preliminary examinations should be optional, the Committee may wish to discuss at what point in the process the option needs to be exercised (taking into account what is best for the defendant and the court system).
A proposed amendment version of Rule 5, incorporating Judge Racek's suggestion that the preliminary examination "right" be eliminated, is attached.