RULE 12. PLEADINGS AND PRETRIAL MOTIONS
BEFORE TRIAL; DEFENSES AND OBJECTIONS
and Motions. Pleadings The pleadings in a criminal proceedings proceeding are the indictment, information and complaint in district court, the complaint in municipal court, and the pleas of not guilty and guilty. All other pleas, demurrers and motions to quash are abolished. Defenses and objections raised before trial must be raised only by motion to dismiss or to grant appropriate relief, as provided in these Rules. Motions to suppress must be made after entry of a plea.
(b) Pretrial Motions.
(1) In General. Rule 47 applies to a pretrial motion.
(2) Motions That May Be Made Before Trial. A party may raise by pretrial motion any
Any defense, objection, or request which is capable of determination that the court can determine without the a trial of the general issue may be raised before trial by motion.
(3) Motions That Must Be Made Before Trial. The following must be raised
prior to before trial: (1) (A) Defenses and objections based on defects in the institution of a motion alleging a defect in instituting the prosecution; (2) (B) Defenses and objections based on defects a motion alleging a defect in the indictment, information, or complaint other than that it fails to show jurisdiction in the court or to charge an offense, which objections must be noticed by the court at any time during the pendency of the proceeding --but at any time while the case is pending, the court may hear a claim that the indictment, information or complaint fails to invoke the court's jurisdiction or to state an offense; (3) (C) Motions a motion to suppress evidence on the ground that it was illegally obtained; (4) (D) Requests for discovery under N.D.R.Crim.P. 16 a Rule 14 motion to sever charges or defendants; or and (5) (E) Requests for a severance of charges or defendants under N.D.R.Crim.P. 14 a Rule 16 motion for discovery.
(4) Notice of the Prosecution's Intent to Use Evidence.
(A) At the Prosecution's Discretion. At the arraignment or as soon afterward as practicable, the government may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(3)(C).
(B) At the Defendant's Request. At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the prosecution's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16.
date Deadline. At the time of The court may, at the arraignment or as soon thereafter afterward as practicable, the court may set a time deadline for making the parties to make pretrial motions and , if required, a later date for may also schedule a motion hearing.
Notice by the prosecution of the intention to use evidence. (1) At the discretion of the prosecution. At the arraignment, or as soon thereafter as is practicable, the prosecution may give notice to the defendant of its intention to use specified evidence at trial in order to afford the defendant an opportunity to raise objections to that evidence prior to trial under subsection (b)(3). (2) At the request of the defendant. At the arraignment or as soon thereafter as is practicable, the defendant, in order to afford an opportunity to raise objections to evidence prior to trial under subsection (b)(3), may request notice of the prosecution's intention to use in its evidence in chief at trial any evidence to which the defendant is entitled to discovery under N.D.R.Crim.P. 16 subject to any relevant limitations prescribed in N.D.R.Crim.P. 16. (e) Ruling on a Motion. A motion before trial shall be determined The court must decide every pretrial motion before trial unless the court, upon a finding of it finds good cause to defer a ruling. , orders that it be deferred for determination at the trial of the general issue or until after verdict, but no determination may be deferred The court must not defer ruling on a pretrial motion if the deferral will adversely affect a party's right to appeal is adversely affected. If When factual issues are involved in determining deciding a motion, the court shall must state its essential findings on the record. (f) (e) Effect of failure to raise defenses or objections Waiver of a Defense, Objection, or Request. Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute a waiver thereof, but the court A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. for For good cause, shown the court may grant relief from the waiver. (g) (f) Records Recording the Proceedings. Except in municipal courts, a verbatim record shall must be made of all proceedings at the motion hearing, including any findings of fact and conclusions of law made orally by the court. (h) (g) Effect of determination Defendant's Continued Custody or Release Status. If the court grants a motion to dismiss based on a defect in the institution of instituting the prosecution, or in the complaint, in the indictment, or in the information, it may also order that the defendant to be held in custody or that bail be continued for a specified time pending the filing of until a new indictment, information, or complaint is filed.
Rule 12 was amended, effective January 1, 1980; September 1, 1983; January 1, 1995; _________.
Rule 12 is similar to Fed.R.Crim.P. 12 with modifications to conform to
the existing practice in North Dakota.
Rule 12 was amended, effective ______________, 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.
Subdivision (a) was amended
in 1983, effective September 1, 1983, to delete obsolete references to the county court with increased jurisdiction and the county justice court. Subdivision (a) was further amended, effective January 1, 1995, in response to county court elimination. The amendment provides for use of the complaint in district court.
All objections or defenses raised before trial must be made by a motion to dismiss or by motion to grant appropriate relief as provided in these
Rules rules. Subdivision (a) speaks only of defenses and objections that prior to the Rules could have been raised by plea, demurrer, or motion to quash. Selection of a wrong plea will no longer be a hazard, since there is now but one mode of raising all objections and defenses. Even if If counsel, unaware of procedural changes, ignorantly interposes an obsolete plea or motion, it may be considered as a motion to dismiss.
Subdivision (b) provides guidance for pretrial motions:
Paragraph (b)(2) provides that any defense or objection that is capable of determination without trial of the general issue may be raised by motion before trial
, but a defendant has no standing to attack a count in an indictment, information, or complaint in which the defendant is not charged with the commission of an offense. Subdivision Paragraph (b)(3) further provides that certain motions must be made prior to trial and follows the federal rule in delineating these motions.
Paragraph (b)(4) follows the federal rule and provides a method for insuring that the defendant knows what evidence the prosecution intends to offer into evidence at trial in order to afford the defendant an opportunity to raise objections to the evidence prior to trial.
Subdivision (c) follows the federal rule and provides that a time for the making of pretrial motions must be fixed at the time of the arraignment or as soon
thereafter afterward as practicable. However, the federal rule allows the court to adopt a local rule to provide for a different date to set a time for making pretrial motions and differs from subdivision (c) in that respect. Subdivision (d) follows the federal rule and provides a method for insuring that the defendant knows what evidence the prosecution intends to offer into evidence at trial in order to afford the defendant an opportunity to raise objections to the evidence prior to trial under subdivision (b)(3).
(e) (d) follows the federal rule and was amended, effective January 1, 1980, to require the existence of "good cause" to defer ruling on a pretrial motion, with the intent of discouraging the tendency to reserve ruling on pretrial motions. Moreover, the court cannot defer its ruling if to do so will adversely affect a party's right to appeal. This will protect protects certain prosecution appeal rights which could be deprived by a deferred ruling.
(f) (e) follows the federal rule and provides that the defendant shall waive the defenses or objections specified in subdivision (b)(1)-(5) paragraph (b)(3) if those defenses and objections are not raised at the time set in subdivision (c). The court may grant relief from the waiver if adequate cause is shown.
(g) (f) follows the federal rule except that a verbatim record of the hearing need not be made in municipal court. Subdivision (g) was amended in 1983, effective September 1, 1983, to delete an obsolete reference to justice courts.
deletion omission of the sentence "This rule does not affect the provisions of any statute relating to periods any federal statutory period of limitations," from subdivision (h) (g) is primarily made because North Dakota does not have statutes comparable to the federal statutes. [See also: 90 A.L.R. 452, 456.] Subdivision (h) was amended, effective March 1, 1990. The amendment tracks the 1987 Federal amendment to Rule 12 which is technical in nature and no substantive change is intended. N.D.R.Crim.P. 12 This rule does not have a subdivision (i) (h) to correspond to the 1983 amendment to the federal Rule Fed.R.Crim.P. (12)(h) Rule 12(i), Fed.R.Crim.P., was adopted to make the provisions of Fed.R.Crim.P. 26.2, Production of Statements of Witnesses, applicable to hearings on a motion to suppress evidence. The effect of the federal rule is that after a witness other than the defendant has testified at a suppression hearing, any statement of that witness in the possession of the party calling the witness shall be available to the other party for examination and use. N.D.R.Crim.P. 12 does not have a corresponding subdivision because under N.D.R.Crim.P. Under Rule 16 a witness' statements are discoverable at any point in the proceedings, rather than only after a witness has testified.
SOURCES: Joint Procedure Committee Minutes of __________ pages ____; January 27-28, 1994, pages 9-10; September 23-24, 1993, pages 8-10; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, pages 16-19; February 17-18, 1983, pages 25-32; December 7-8, 1978, pages 3-8; October 12-13, 1978, pages 1-2; May 11-12, 1972, pages 7-13; July 25-26, 1968, pages 4-6.
SUPERSEDED: N.D.C.C. §§ 29-11-01, 29-11-02, 29-11-13, 29-14-01, 29-14-03, 29-14-04, 29-14-05, 29-14-06, 29-14-07, 29-14-08, 29-14-09, 29-14-10, 29-14-11, 29-14-12, 29-14-13, 29-14-14, 29-14-15, 29-14-25.
CROSS REFERENCE: N.D.R.Crim.P. 14 (Relief from Prejudicial Joinder); N.D.R.Crim.P. 16 (Discovery and Inspection); N.D.R.Crim.P. 17.1 (Omnibus Hearing and Pretrial Conference); N.D.R.Crim.P. 47 (Motions).