RULE 9. WARRANT OR SUMMONS UPON INDICTMENT OR INFORMATION
Upon the request of the prosecuting attorney the The court shall must issue a an arrest warrant of arrest for each defendant named in the indictment or information, if it is supported by a showing of probable cause as required in Rule 4(a). , or in the indictment, except that The court need not issue a warrant need not be issued for any defendant who has been held to answer for any offense charged. The court, after After a showing of probable cause, shall the court may issue a summons instead of a warrant upon on its own motion or at the request of the prosecuting attorney. Upon On like request or on its own motion, the court shall may issue more than one warrant or summons for the same defendant. The court must issue the arrest warrant or summons shall be delivered to the sheriff or other person authorized by law to execute or serve it. If the a defendant fails to appear in response to a summons, the court must issue a warrant shall issue.
(1) Warrant. The
form of the warrant shall be as provided in warrant must conform to Rule 4(b)(1) except that it shall must be signed by the clerk, describe the offense charged in the indictment or information, and command that the defendant be arrested and brought before the court. The court may fix the amount of bail may be fixed by the court and endorsed endorse it on the warrant.
(2) Summons. The summons
shall must be in the same form as the a warrant except that it shall summon must require the defendant to appear before the court at a stated time and place.
(c) Execution or Service; and Return.
(1) Execution or Service. The warrant
shall must be executed or the summons served as provided in Rule 4(c)(1) and (2).
The officer executing a warrant shall make return thereof to the court. At the request of the prosecuting attorney any unexecuted warrant shall be returned and canceled. On or before the return day the person to whom a summons is delivered for service shall make return thereof. At the request of the prosecuting attorney made while the indictment or information is pending, a warrant returned unexecuted and not canceled, or a summons returned unserved, or a copy thereof, may be delivered by the clerk to a peace officer for execution or service. A warrant or summons must be returned in accordance with Rule 4(d).
Rule 9 was amended, effective ________.
Rule 9 is an adaptation of Fed.R.Crim.P. 9, and provides for the issuance of a warrant or summons upon indictment or information. A summons should be issued unless there is reason to believe that the accused will not appear. The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing * * * persons * * * to be seized." If an indictment has been returned, the Fourth Amendment is satisfied and the warrant can issue on request without more, since the indictment is made on the oath of the grand jury. The provision for showing of the "probable cause" as required in Rule 4(a) makes explicit the fact that a warrant or summons can issue on the basis of an information only if the information or affidavit filed with the information shows probable cause for the arrest warrant or summons. Generally, prosecution on information has as a prerequisite a determination of probable cause at a preliminary examination. Under N.D.C.C. § 29-09-02, however, an information can be filed during a term of court without preliminary examination if the offense charged is committed during the term of the district court in and for the county in which the offense is committed or triable. The language of Subdivision (a) is intended to provide for such situations.
Subdivision (b) incorporates by reference the provisions of Rule 4(b) concerning the form of the warrant or summons. The minor differences reflect the different stage in the proceeding at which the warrant or summons is being issued. The warrant upon an indictment or information must be signed by the clerk
[In re Markel, 195 F.Supp. 926 (D. Mich. 1961), where the court relied on Fed.R.Crim.P. 9(b)(1), by analogy to hold that the warrant for arrest of bankrupt is invalid if not signed by the clerk] and must describe the offense charged in the indictment or information. The amount of bail may be fixed by the court and endorsed on the warrant. [See Rule 46. Release from Custody. ]
Subsection (c)(1) incorporates by reference portions of Rule 4(c) dealing with the execution of a warrant and service of a summons.
Subsection (c)(2), dealing with return, is virtually the same as Rule 4(d), providing for return of a warrant or summons issued on the complaint. At the request of the prosecuting attorney, any unexecuted warrant must be returned and canceled. On or before the return day, the person to whom a summons was delivered for service must make a return to the court.
Rule 9 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.
SOURCES: Joint Procedure Committee Minutes of _________pages____; March 23-25, 1972, pages 16-20; May 15-16, 1969, page 7; May 3-4, 1968, page 7; Fed.R.Crim.P. 9; Proposed Amendment, Preliminary Draft, 48 F.R.D. 575 (1970); Wright, Federal Practice and Procedure: Criminal, § 151-153 (1969); 8 Moore's Federal Practice, Chapter 9 (Cipes, 2d Ed. 1970); Barron, Federal Practice and Procedure: Criminal, § 1941-1943 (1951); A.B.A. Standards for Criminal Justice, Standards Relating to Function of the Trial Judge, § 3.1 (Approved Draft, 1968).
SUPERSEDED: N.D.C.C. §§ 29-12-03, 29-12-04, 29-12-06, 29-12-08.
CROSS REFERENCES: N.D.R.Crim.P. 4 (Arrest Warrant or Summons Upon Complaint); N.D.R.Crim.P. 46 (Release from Custody); N.D.C.C. § 29-09-02 (Prosecution on Information--In what cases.
)* *Generally, prosecution on information has as a prerequisite a determination of probable cause at a preliminary examination. Under N.D.C.C. § 29-09-02, however, an information can be filed during a term of court without preliminary examination if the offense charged is committed during the term of the district court in and for the county in which the offense is committed or triable. The language of Rule 9 is intended to provide for such situations.