RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE
(a) General. An officer or other person making an arrest shall take the arrested person without unnecessary delay before the nearest available magistrate. If an arrest is made without a warrant, the magistrate shall promptly determine whether probable cause exists under Rule 4(a). If probable cause exists to believe
thatthe arrested person has committed a criminal offense, a complaint must be filed forthwith in the clerk of court's office serving the county where the offense was allegedly committed. A copy of the complaint must be given within a reasonable time to the arrested person and to any magistrate before whom hethe person is brought, if other than the magistrate with whom the complaint is filed.
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Rule 5 was amended, effective March 1, 1990; January 1, 1995; ____________________.
Rule 5 is adapted from the proposed amendment to Rule 5, FRCrimP [48 F.R.D. 580, January, 1970]. Rule 5 is procedurally designed to advise the defendant of the charge against the defendant and to inform the defendant of the defendant's rights. This procedure differs from the arraignment [see Rule 10, NDRCrimP] in that the defendant is not called upon to plead.
Subdivision (a) provides that an arrested person must be taken before the magistrate "without unnecessary delay". Unnecessary delay in bringing a person before a magistrate is one factor in the totality of circumstances to be considered in determining whether incriminating evidence obtained from the accused was given voluntarily. State v. Newnam, 409 N.W.2d 79, 85 (N.D. 1987).
Subdivision (a) was amended, effective January 1, 1995, to clarify that a "prompt" judicial determination of probable cause is required in warrantless arrest cases. See Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2d 54, 95 S.Ct. 854 (1975). County of Riverside v. McLaughlin, 500 U.S. 1, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) defines "prompt."
Subdivision (b) is designed to carry into effect the holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, rehearing denied sub nom., California v. Stewart, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). Because the Miranda rule is constitutionally based, it applies to all officers whether State or Federal. One should note that the protections required by Miranda apply as soon as a person "has been taken into custody or otherwise deprived of his freedom of action in any significant way", while the requirement that an accused be taken before a magistrate is applicable only to an "arrested person". The Miranda decision is based upon the Fifth Amendment privilege against self-incrimination, and holds that no statement obtained by interrogation of a person in custody is admissible, unless, before the interrogation begins, the accused has been effectively warned of the accused's rights, including the right not to answer questions and the right to have counsel present. [See Wright, Federal Practice and Procedure: Criminal § 76-77 (1982).]
Subdivision (b) specifies the action which must be taken by the magistrate. Subsections (b)(1)(i), (b)(1)(ii), and (b)(1)(iii) are stated by Miranda to be absolute prerequisites to interrogation and cannot be dispensed with on even the strongest showing that the person in custody was aware of those rights. [See Miranda v. Arizona, supra, 384 U.S. at 468-472.]
Subsection (b)(2) provides an additional requirement to the instructions given by the magistrate in Subsection (b)(1) when the charge is a felony. It requires the magistrate to inform the defendant of the right to a preliminary examination. The Sixth Amendment right to counsel applies to a preliminary examination granted under state law if the preliminary examination is a critical stage of the state's criminal process. Coleman v. Alabama, 339 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); State v. Iverson, 187 N.W.2d 1, 34 (N.D. 1971).
Subdivisions (b) and (c) were amended, effective March 1, 1990.The 1990 and _______ amendments track the 1987 Federal amendments to Rule 5 whichare technical in nature and no substantive change is intended.
Subdivision (c) was amended, effective January 1, 1995, in response to elimination of county courts and to ensure that a defendant is not called upon to waive the preliminary examination or to plead without the assistance of counsel at the initial appearance.
SOURCES: Minutes of the Rules Committee Meetings of ________________________; January 27-28, 1994, pages 3-5; September 23-24, 1993, pages 4-7; April 20, 1989, page 4; December 3, 1987, page 15; February 22-23, 1973, page 18; March 23-24, 1972, pages 2-3, 11-12; January 27, 1972, pages 17-22; November 21-22, 1969, pages 2, 8-9, 17-19; May 3-4, 1968, pages 1-2; January 26-27, 1968, pages 7-9.
SUPERSEDED: 29-05-04, 9-05-11, 29-05-17, 29-05-19, 29-07-01, 29-07-02, 29-07-04, 29-07-05, 29-07-07, 29-07-08, 29-07-09, 29-07-10, 33-12-07, 33-12-09, NDCC.
CONSIDERED: 29-07-03, 29-07-06, 40-18-15, 40-18-16, 40-18-18, NDCC.
CROSS REFERENCES: Rule 5.1.-Preliminary Examination, NDRCrimP; Rule 35.-Correction or Reduction of Sentence, NDRCrimP; Rule 44.-Right to and Assignment of Counsel, NDRCrimP.