RULE 12. PLEADINGS AND PRETRIAL MOTIONS
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
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 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
(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
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
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
(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
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.
(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
until after verdict, but no determination may be deferred The court must not defer
a pretrial motion if the deferral will adversely affect a party's right to appeal
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
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
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
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; March 1, 2006.
Rule 12 is similar to Fed.R.Crim.P. 12 with modifications to conform to
practice in North Dakota.
Rule 12 was amended, effective March 1, 2006, 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
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
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
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,
there is now but one mode of raising all objections and defenses. Even if If
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
without trial of the general issue may be raised by motion before trial
, but a defendant
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
practicable. However, the federal rule allows the court to adopt a local rule to provide
different date to set a time for making pretrial motions and differs from subdivision (c) in
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
protect protects certain prosecution appeal rights which could be
deprived by a deferred
(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
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
(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 Rule 12 does not have a subdivision
(i) (h) to correspond to the 1983
amendment to the federal Rule 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
subdivision because under N.D.R.Crim.P. In North Dakota, under
Rule 16, a witness'
statements are discoverable at any point in the proceedings, rather than only after a witness
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages 3-6; 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).