TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: May 1, 2009
RE: Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate
At its September 2008 and January 2009 meetings, the Committee discussed proposed statutory changes contained in H.B. 1288 and their possible impact on North Dakota criminal procedure, in particular to Rule 5.
The statutory changes have been passed by the legislature and a copy of the final bill is attached. The effect of the changes is to expand the use of the uniform complaint and summons while also requiring the use of this device to comply with the Rules of Criminal Procedure.
The Committee's discussion on this issue suggests, in general, that there are two "worst case" scenarios that can occur when a uniform complaint and summons is used to commence a criminal proceeding:
a person can be arrested, fail to bond out under the bail schedule, and be left to sit in jail without a bail hearing;
a person can bond out, appear at the designated time before the court, and have there be no charging document or any other information in the file.
The Committee's discussion indicates that these scenarios can be avoided if there is proper coordination and communication between law enforcement, the state's attorney, and the courts in situations where a uniform complaint and summons is used. The Committee has also dealt specifically with the second scenario by approving a proposed change to N.D.R.Crim.P. 48 that would allow the court to dismiss a matter if the uniform complaint and summons is not filed.
Staff is uncertain whether any change to the Rules of Criminal Procedure could be made to ensure appropriate communication between law enforcement, the state's attorney, and the courts. Given that the approved statutory change specifically states that the use of a uniform complaint and summons must comply with the Rules of Criminal Procedure, perhaps no change to the rules is needed, except possibly to explanatory notes or statutory cross-references. The Committee may wish to discuss this issue and provide staff with guidance on what direction thinks the rules should go.
At its January 2009 meeting, the Committee also discussed proposed statutory and rule changes from the North Dakota Association of Counties. The Association decided not to go forward with its proposed statutory changes. The Association's proposed rule changes, therefore, are no longer needed. In the course of discussing the changes, however, the Committee decided that simplifying charging document terminology and procedure to reflect actual practice would be a good idea. The Committee instructed staff to prepare rule amendments that would use the term "complaint" for the charging document in a criminal case.
In April 2009, the North Dakota Supreme Court decided State v. Bethke, 2009 ND 47. In this case, the Court observed that Article I, Section 10 of the North Dakota Constitution requires criminal offenses to be prosecuted by information or indictment. In Bethke, no information was filed. The Court decided the failure to file an information was both a violation of the Rules of Criminal Procedure and the N.D. Constitution, but that it was harmless error because the complaint provided the defendant all the information he needed about the charges against him. A copy of the case is attached.
Given that Bethke makes it clear that the N.D. Constitution requires prosecution by information or indictment, it is probably not advisable to eliminate references to the information from the rules. If adopting one charging document is still a course the Committee wants to pursue, an alternative would be to eliminate "complaint" from the rules and replace it with information. Cass County reportedly prosecutes all its cases by information rather than using a complaint followed by an information. In addition, the complaint does not play the large role in the N.D. Constitution and Century Code that is played by the information.
In addressing this issue, the Committee should bear in mind that a large scale adaptation of the criminal rules will be required to eliminate references to the complaint. The complaint is the subject of N.D.R.Crim.P. 3 and it is referenced in at least a dozen other rules. In addition, courts could not deal with the uniform complaint and summons as if it were a complaint if references to the complaint were removed from the rules. New rule references would be needed to deal with this device.
The Committee may wish to discuss this issue and provide guidance to staff on how to