TO: Joint Procedure Committee
FROM: Sara Selby
RE: Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate
5(a)(1): The first noticeable difference between Fed.R.Crim.P. 5(a) and N.D.R.Crim.P. 5(a) is that the federal section is divided into several subsections. Since this is preferable to the long paragraph format of the current North Dakota rule, this change should be incorporated. The section seems to divide naturally, with the first sentence discussing the appearance required in all arrests in one subsection and the three sentences discussing the procedure in arrests without warrants in another section. The phrases from the federal rule "Appearance Upon an Arrest" and "Arrest Without a Warrant" might be appropriate titles for this subsection.
The North Dakota rule also differs from both versions of the federal rule in the words it uses to describe the person making the arrest. The old federal rule uses the cumbersome phrase "an officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant" while the new federal rule uses the phrase "a person making an arrest." The North Dakota rule uses "an officer or other person making an arrest." This seems to incorporate the best aspects of both federal versions, and eliminates the unnecessary distinction between arrests made with warrants and those without. One difference that exists between the N.D.R.Crim.P. 5(a)(1) and the new version of Fed.R.Crim.P. 5(a) is that the North Dakota rule uses "magistrate" alone while the federal rule uses "magistrate judge." The Explanatory Note to Fed.R.Crim.P. 4 explains that this change was made with the intention of mandating that the defendant should be taken to a federal judicial officer rather than a state or local one. As this problem does not occur in the state context, the current use of "magistrate" should be retained. The federal rule also uses "must" instead of "shall," a change that the North Dakota rule should incorporate because it is more precise. Another difference between N.D.R.Crim.P. 5(a)(1) and the new version of Fed.R.Crim.P. 5(a) is that the new federal rule replaces "the arrested person" with "the defendant." However, it seems advisable to retain the North Dakota phrase as it is more appropriate for this stage in the proceedings where the arrested person has not been formally charged.
Another difference is that Fed.R.Crim.P. 5(a) has eliminated the phrase "before the nearest available magistrate." However, during a Joint Procedure Committee hearing, Judge Burdick stated that the important thing is to bring the defendant before the nearest available magistrate without delay. Minutes of the Joint Procedure Comm. 16-17 (Nov. 20, 1969). This indicates that "nearest available" is as important as without delay and shouldn't be eliminated just because the federal rule does so. The older version of the federal rule also contains a subsection stating that the judge shall proceed in accordance with the applicable subdivisions of this rule. This statement was in a previous version of N.D.R.Crim.P. 5(a)(1) and it was deleted as meaningless and the new federal rule has followed suit, suggesting that the deleted material should not be reinserted. Minutes of the Joint Procedure Comm. 18 (Jan. 27-28-29, 1972).
5(a)(2): N.D.R.Crim.P. 5(a)(2) is not substantially different from its federal counterpart. The first sentence of the North Dakota rule is worded to use active voice, which might be preferable to the federal version. The second sentence of the North Dakota rule is also in the passive voice, but this might be one of the instances mentioned in the Guidelines where the passive voice should be maintained to avoid narrowing the group of persons who can perform a certain action. See Garner, Bryan A, Guidelines for Drafting and Editing Court Rules 4 (1996). The word "shall" in the first sentence should be replaced by "must" and the word "forthwith" in the second sentence should be eliminated. The North Dakota rule contains a sentence about the circumstances in which a defendant and a magistrate must be provided with a copy of the complaint, a sentence which is not found in the federal rule. There is no discussion of this provision in the rule's history, but this seems to conform to the general North Dakota practice of providing defendants with information regarding the charges against them. See N.D.R.Crim.P. 4(b)(1). The federal rule also contains additional provisions which discuss exceptions, the place of initial appearance, and procedures in other district courts. However, these provisions are not relevant to North Dakota procedure and should not be incorporated.
5(b)(1): N.D.R.Crim.P. 5(b)(1) differs in form from the old version of the federal rule by using a list format rather than one long paragraph. However, the new federal rule also uses the list format, which is generally considered easier to read and understand. Because this format is generally considered easier to read and understand, it should be retained. However, the new federal rule introduces its list with the phrase "the following," which is recommended in the Guidelines. See Garner at 23. This small style change is a good way to foreshadow the list, and should be incorporated. Additionally, the word "must" should be substituted for "shall."
The new federal addition specifies that the offense charged must be a felony, which differs from the North Dakota rule. The Joint Procedure Committee decided that in North Dakota these provisions are applicable to all cases and that the specific provisions for felonies and misdemeanors should be discussed in following sections. Minutes of the Joint Procedure Comm. 19 (Jan. 27-28-29, 1972). N.D.R.Crim.P. 5(b)(1)(ii) uses slightly different language than its federal equivalent, using "charge" instead of "complaint" and "accompanying" instead of "filed with it." There seems to be no substantive reason for these differences, and as such the current North Dakota language should be retained. The North Dakota rule also uses the phrase "right to remain silent" instead of the federal rule's "right not to make a statement." This should also be retained, as the North Dakota phrase is both familiar and more concise.
The provisions in N.D.R.Crim.P. 5(b)(iii)-(v) differ from similar language in the federal rule. These subsections guarantee the assistance of counsel before making any statement or answering any questions, the right to be represented by counsel at each stage of the proceedings, and the right to legal services to the extent the defendant is unable to pay for them in cases where court-appointed counsel is required. The first two provisions have no equivalent in the federal rule and while they are not addressed in the Joint Committee Proceedings, they are substantive in nature and provide the defendant with expanded protections. As such, they should be retained in the revised version of the North Dakota rule. The third sentence does have a federal equivalent, which uses the more concise language, "the defendant's right to retain counsel or request that counsel be appointed if the defendant cannot obtain counsel." However, in 1972, an amendment similar to the federal rule was rejected because it could be interpreted as providing a public defender in cases where it is not currently necessary to have one. Minutes of the Joint Procedure Comm. 19 (Jan. 27-28-29, 1972). Given the possibility that a change in language could expand the number of cases where a public defender is required, it seems preferable to keep this provision of the ND rule as it is. The federal rule contains one provision that the North Dakota rule does not, a sentence which guarantees that the defendant an opportunity to consult with counsel. However, subsection (b)(1)(iv)'s guarantee that the defendant has the right to be represented at each and every stage of the proceedings and subsection (c)(1)'s requirement that the defendant have counsel before pleading at the initial appearance both take this goal into account. Because this policy is incorporated elsewhere in the rule, there does not seem to be a pressing need to insert an additional sentence.
N.D.R.Crim.P. 5(b)(vi) is similar to comparable federal provisions, though it uses different language. The use of "bail" instead of "pretrial release" should be retained, as "bail" is more concise. The North Dakota rule also specifies the statute under which the defendant's terms of bail will be determined, which is appropriate where there is a specific rule on the subject. The style should be altered slightly, replacing "pursuant to the provisions of" with "under." See Garner at 34.
5(b)(2): One difference between the revised federal rule and the North Dakota rule is that the federal rule has replaced its language about "the right to a preliminary hearing," which the defendant must be informed of, with the phrase "any right to a preliminary hearing." The reason for this is that Fed.R.Crim.P. 5.1 has been amended to limit the circumstances in which a preliminary hearing is required. As the current recommendation is to retain the current North Dakota procedures for preliminary hearings, as discussed below, the language in this section guaranteeing a right to a preliminary hearing should also be retained. The federal rule has also chosen to refer to the procedure as a "preliminary hearing" rather than a "preliminary examination." The Explanatory Note to Fed.R.Crim.P. 5.1 states that this change was made because a hearing was a more accurate term for a procedure which involves an evidentiary hearing, an argument, and a judicial ruling and because the phrase was more commonly used than "preliminary examination." Both phrases are used in North Dakota statutes, but as "preliminary examination" is the title of one chapter it might be preferable to retain the current terminology. See, e.g. N.D.C.C. 29-07-03; N.D.C.C. 29-09-02; N.D.C.C. 29-10.1-21; N.D.C.C. 29-07-14.
5(b)(2): The North Dakota provision discussing prosecutions of misdemeanor violations resembles the federal version in substance, as both of the rights specified in the North Dakota rule are mentioned in Fed.R.Crim.P. 58. As North Dakota has no Rule 58, it is necessary to specify the procedural information that should be conveyed to the defendant. If the word "offense" was replaced with the "defendant is" as in the federal rule, the first sentence could be changed from passive voice to active voice. Additionally, the word "must" should be substituted for "shall."
5(c)(1): One of the most notable differences between the revised federal and North Dakota rules is that the federal rule has moved the information formerly contained in Fed.R.Crim.P. 5(c) to Fed.R.Crim.P. 5.1, and has made substantial changes to this language. In place of the former language entitling a defendant to a preliminary examination for non-petty offenses, it allows the proceedings to continue without a preliminary examination in cases where the defendant is indicted or where the government files an information. While grand juries exist by statute in North Dakota, they are seldom used and there are no rules of court governing them. Because of this, adapting the federal language would essentially eliminate the preliminary hearing in North Dakota, and it is debatable whether this would be a desirable change.
The Joint Procedure Committee discussed the question of eliminating the preliminary examination in 1993. Committee members favoring elimination argued that it caused delay, that it had no point because an affidavit is simply filed, and that it is frequently waived in many jurisdictions. Minutes of the Joint Procedure Comm. 3 (Sept. 23-24, 1993). Those favoring retention countered that the procedure saved resources because it allowed for a fuller examination of the probable cause determination and led to the dismissal of meritless cases, though members who favored elimination responded that the finding of probable cause is seldom overturned at the preliminary examination. Id. Committee members in favor of allowing preliminary hearings also argued that they provided indigent defendants with an inexpensive means of discovery, though members who wanted to eliminate preliminary examinations pointed out that discovery is now allowed under N.D.R.Crim.P. 16 and that exculpatory evidence must be disclosed . Id. Because the defendant can and often does waive the preliminary hearing, the effect of the procedure on the judicial system is unlikely to be unreasonably burdensome. Even though the preliminary hearing seldom results in the dismissal of a case, its potential for weeding out an occasional meritless case through the more extensive examination of probable cause provides an added procedural safeguard. Because of this benefit, it might be advisable to continue allowing defendants the option of having a preliminary hearing.
The North Dakota rule also contains provisions specifying that the defendant may only waive the preliminary hearing if assisted by counsel and allowing a defendant who waives the preliminary hearing to plead at the initial appearance. During the most recent discussion of these provisions, some committee members felt it was unfair to require pro se defendants to have counsel before waiving the preliminary hearing. Minutes of the Joint Procedure Comm. 5-6 (Sept. 23-24, 1993). However, others pointed out that a defendant who wished to plead guilty without counsel could do so at a later hearing. Id. Additionally, these members suggested that requiring counsel before the waiver of the preliminary hearing would reduce the number of motions to withdraw guilty pleas. Id. The provision allowing defendants who waive the preliminary hearing to plead is desirable because it allows the judicial system to move quickly. However, because defendants have the option of pleading if they waive the hearing, it makes sense that there should be a standard for waiving the hearing since more is at stake. The requirement that defendants wishing to waive the preliminary hearing does not seem to be unduly burdensome, especially since defendants who wished to represent themselves could simply choose to go through the preliminary hearing process.
The third sentence of the rule is somewhat troubling in terms of form and organization. It reads, "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." Although this sentence fits with the pleading information, it seems out of place under the subsection title "Waiver." This sentence might be better placed in subsection (2), which discusses non-waiver. Most of the sentences in subsection (1) do not need any style modifications, but the last sentence discussing bail should be modified so that "must" replaces "shall" and "under" replaces "pursuant to." Although last sentence uses the passive voice, it is not entirely clear who should schedule the arraignment and this might best be left in the passive voice to avoid narrowing the meaning.
5(c)(2): As discussed above, the provision stating that a defendant who has not waived a preliminary hearing shall not be called upon to plead would be more appropriately placed in this subsection. This information naturally precedes information about who should conduct the preliminary hearing and should be placed at the beginning of the paragraph. However, this results in two sentences in a row that start with the phrase "If the defendant does not waive preliminary examination." As this is unnecessarily repetitive, the phrase should be deleted in the second sentence. The last two sentences contain two instances of "shall," both of which should be replaced by "must." As in the preceding subsection, the phrase "pursuant to" should be replaced by "under."
5(d): A newly proposed amendment to N.D.R.Crim.P. 5 would allow an appearance to be conducted by interactive television with the consent of the defendant. This amendment is similar to the federal rule and allows a cost-saving feature to be incorporated into the preliminary hearing process. The Explanatory Note to Fed.R.Crim.P. 5 carefully discusses the benefits and detriments of this policy, pointing out that it has the potential to undermine the integrity and solemnity of federal criminal proceedings, interfere with the ability of the defendant to interact with counsel and others who come to the appearance to support the defendant, and reduce the ability of the magistrate to assess the condition of the defendant for the purposes of pretrial release. On the other hand, interactive television may reduce both the distance the defendant must travel and the length of time a defendant must wait before making an initial appearance, which seems to fit with subsection (5)(a)(1)'s goal of bringing the defendant before a magistrate without undue delay. As the appearances by interactive television are only by consent, the defendant can assess whether any potential detriments from the process outweigh the potential benefits of shorter waits and reduced travel. Because this proposed amendment offers another option which may save time and travel, it seems to be a reasonable addition to the current rule.