RULE 5.1 PRELIMINARY EXAMINATION

(a) Probable cause finding. If it appears from the evidence that there is probable cause to believe that an offense has been committed and that the defendant committed it the offense, an arraignment must be scheduled. The finding of probable cause may be based upon hearsay evidence in whole or in part. The defendant may cross-examine adverse witnesses and may introduce evidence. The magistrate may receive evidence that would be inadmissible at the trial. A judge who finds probable cause is [not] disqualified from presiding over any subsequent proceeding in the pending prosecution.

(b) Discharge of the Defendant. After hearing the evidence on behalf of the respective parties, in a preliminary examination, if it appears either that a public offense has not been committed, or that there is not sufficient cause to believe the defendant guilty thereof of the offense, the magistrate shall order the defendant to be discharged.

(c) Record. A verbatim record of the proceedings in the preliminary hearing must be made under the direction of the magistrate if a request therefor for a record is made by either the State or the defendant. A 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 if either party requests the same. 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 that the defendant is financially unable to pay for it the transcript without undue hardship.

EXPLANATORY NOTE

Rule 5.1 was amended, effective February 12, 1982 on an emergency basis; May 20, 1982; March 1, 1990; January 1, 1995; .

The function of the preliminary examination is to determine whether there is probable cause to hold the accused for further action.

The Supreme Court on February 12, 1982, in conformity with North Dakota Century Code 29-07-01.1, adopted as an emergency rule an amendment to subdivision (c). The amendment was adopted as a permanent rule on May 20, 1982. The amendment provided that if a transcript is requested by a defendant, "the cost of the transcript and related costs" shall be borne by the "state," rather than "its costs" shall be borne by the "county wherein the venue of the alleged offense was originally laid" if the magistrate finds that the defendant is financially unable to pay for it without undue hardship. The amendment was made to conform with legislative intent in transferring certain court costs from the counties to the state.

Rule 5.1 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.

Rule 5.1 was amended, effective January 1, 1995, to conform with the structure of the state judiciary and the elimination of county courts.

SOURCES: Minutes of the Rules Committee Meetings of ; 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.

STATUTES AFFECTED:

SUPERSEDED: 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, NDCC.

CONSIDERED: 29-07-01.1, 29-07-13, 29-07-14, NDCC.

CROSS REFERENCES: Rule 5.-Initial Appearance Before the Magistrate, NDRCrimP; Rule 12.-Pleadings and Motions Before Trial; Defenses and Objections, NDRCrimP.