TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: Jan. 19, 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. Mr. Brady is working with Aaron Birst of the North Dakota Association of Counties on statutory amendments consistent with the proposed rule amendments.
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's proposed statutory changes are also included in his memo. These would eliminate the remnants of the old dual court charging system and clarify 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 have been introduced as H.B. 1192, a copy of which is attached. Aaron Birst of the North Dakota Association of Counties testified in support of the bill Jan. 18 and says that it seems to have support from the House Judiciary Committee.
The proposed changes to Rule 3, 5 and 7 are attached.