TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 13, 2011
RE: Rule 3, N.D.R.Crim.P., The Complaint; Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate; Rule 7, N.D.R.Crim.P., The Indictment and the Information
Reid Brady, an assistant state's attorney for Cass County, proposes that Rules 3, 5 and 7 be amended to allow the information to be used as an initial charging document in criminal cases.
The proposed changes are consistent with recently passed amendments to N.D.C.C. 29-04-05 and related statutes. Under the new statutory language "A prosecution is commenced when a uniform complaint and summons, a complaint, or an information is filed or when a grand jury indictment is returned."
Mr. Brady explains his proposals in the attached memo. To summarize, he proposes deletion of language in Rule 3 that defines the complaint as the sole initial charging document for an offense. The change is designed to remove any impediment to initiating prosecutions by information, which is common practice in Cass County. Mr. Brady argues that, with the abolition of county courts, using the "first complaint, later information" approach is unnecessary. Proposed changes to Rules 5 and 7 parallel the proposed change to Rule 3, recognizing that an information may be used as the initial charging document for an offense.
Mr. Brady's proposal seems consistent with N.D. Const. Section 10, which requires prosecution by indictment or information.
Mr. Brady also explains the statutory changes in his memo. These changes eliminated the remnants of the old dual court charging system and clarified that a case starts upon the filing of the charging document - whether uniform complaint and summons, complaint, or information - or upon the return of a grand jury indictment. These changes were included in H.B. 1192, a copy of which is attached. The bill was signed by the governor on March 29, 2011.
The proposed changes to Rule 3, 5 and 7 are attached. Given that the statutory amendments will become effective August 1, 2011, the Committee may wish to send the proposal to the Supreme Court immediately if it chooses to approve it.