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 that the arrested person has committed a criminal offense, a complaint must be filed forthwith in 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 he is brought, if other than the magistrate with whom the complaint is filed.
(b) Statement by the Magistrate at the Initial Appearance.
(1) In All Cases. The magistrate shall inform the defendant:
(i) Of the charge against the defendant and any accompanying affidavit;
(ii) Of the defendant's right to remain silent; that any statement made by the defendant may later be used against the defendant;
(iii) Of the defendant's right to the assistance of counsel before making any statement or answering any questions;
(iv) Of the defendant's right to be represented by counsel at each and every stage of the proceedings;
(v) That if the offense charged is one for which court-appointed counsel is required, the defendant has the right to have legal services provided at public expense to the extent that the defendant is unable to pay for the defendant's own defense without undue hardship; and
(vi) That the defendant has the right to be admitted to bail pursuant to the provisions of Rule 46.
(2) Felonies. If the offense charged is a felony, the magistrate shall inform the defendant also of the defendant's right to a preliminary examination, and the right to the assistance of counsel at the preliminary examination.
(3) Misdemeanors. If the offense charged is a misdemeanor, the magistrate shall inform the defendant also of the defendant's right to trial by jury in all cases as provided by law, and of the defendant's right to appear and defend in person or by counsel.
(c) Right to Preliminary Examination.
(1) Waiver. If the offense charged is a felony, the defendant has the right to a preliminary examination. The defendant may waive the right to preliminary examination at the initial appearance if assisted by counsel. If the defendant does not waive preliminary examination, the defendant may not be called upon to plead to a felony offense at the initial appearance. If the defendant is assisted by counsel and waives preliminary examination, and the magistrate is a judge of the district court, the defendant may be permitted to plead to the offense charged in the complaint at the initial appearance. If the defendant waives preliminary examination and does not plead at the initial appearance, an arraignment must be scheduled. The magistrate shall admit the defendant to bail pursuant to the provisions of Rule 46.
(2) Non-waiver. If the defendant does not waive preliminary examination, a magistrate of the county in which the offense was allegedly committed shall conduct the preliminary examination. The magistrate shall admit the defendant to bail pursuant to the provisions of Rule 46.
(d) Interactive Television. Interactive television may be used to conduct an appearance under this rule if the defendant consents.
Rule 5 is adapted from the proposed amendment to Fed.R.Crim.P. 5 [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 N.D.R.Crim.P. 10] 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 amendments track the 1987 Federal amendments to Rule 5 which are 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.
Subdivision (d) was adopted, effective March 1, 2004, to permit the use of interactive television to conduct initial proceedings if the defendant consents.
SOURCES: Joint Procedure Committee Minutes of September 26-27, 2002, pages 12-13; 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: N.D.C.C. §§ 29-05-04, 29-05-11, 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.
CONSIDERED: N.D.C.C. §§ 29-07-03, 29-07-06, 40-18-15, 40-18-16, 40-18-18.
CROSS REFERENCES: N.D.R.Crim.P. 5.1.-Preliminary Examination; N.D.R.Crim.P.
10-Arraignment; N.D.R.Crim.P. 35.-Correction or Reduction of Sentence
-Presence of the Defendant; N.D.R.Crim.P. 44.-Right to and Assignment of Counsel.