RULE 7. THE INDICTMENT AND THE INFORMATION
Use of Indictment or Information When Used.
(1) Felony. All felony prosecutions in the district court must be by indictment after grand jury inquiry or information after preliminary examination.
(2) Misdemeanor. All misdemeanor and other prosecutions in the district court, including appeals, must be by indictment, information, or complaint.
(b) Waiver of Indictment. [Intentionally omitted].
(c) Nature and Contents.
(1) In General. The indictment or the information must name or otherwise identify
defendant, and must be a plain, concise, and definite written statement of the essential facts
constituting the offense charged. It must be signed by the prosecuting attorney. All
prosecutions except appeals from municipal courts must be carried on in the name and by
the authority of the State of North Dakota and must conclude "against the peace and dignity
of the State of North Dakota". Except as required by this
the indictment or
information need not contain a formal commencement, a formal conclusion, or any other
matter not necessary to the statement. Allegations made in one count may be
by reference in another count. A count may incorporate by reference an allegation
another count. It may be alleged in a single A count may
allege that the means by which
the defendant committed the offense are unknown or that the defendant committed it by one
or more specific means. For each count, The the indictment
or information must state for
each count give the official or customary citation of the statute, rule,
regulation, or other
provision of law which the defendant is alleged to have violated.
(2) Citation Error. Unless the defendant was prejudicially misled, neither an
the citation or nor its omission is not a
ground for dismissal of to dismiss the indictment or
information or for reversal of to reverse a conviction if the
error or omission did not
prejudicially mislead the defendant.
Unnecessary allegations may be disregarded as surplusage and the
on On motion of either party or upon on its own
motion, the court may strike surplusage
from the information or indictment.
Amendment of Amending an Information. Unless an
additional or different offense is
charged or a substantial right of the defendant is prejudiced, The
the court may permit an
information to be amended at any time before the verdict or finding , if no
different offense is charged and substantial rights of the defendant are not prejudiced.
(f) Bill of Particulars. The court may direct the filing of a bill of particulars.
defendant may move for a bill of particulars may be made before
arraignment or within one
day after arraignment or at a later time if the court permits such later time as the
permit. The motion must be in writing and must specify the particulars sought by
defendant. A bill of particulars should must be granted if
it appears to the court finds it
necessary to protect the defendant against a second prosecution for the same offense or to
enable the defendant to adequately prepare for trial. The motion must be in writing and
specify the particulars sought by the defendant. A bill of particulars may be amended at
time subject to such conditions as justice requires.
(g) Names of Witnesses to Be Endorsed on Indictment or Information. When an indictment
or information is filed, the names of all the witnesses on whose evidence the indictment or
information was based must be endorsed
thereon on it before it is
presented , and the. The
prosecuting attorney, at a time the court prescribes by rule or otherwise, must
on the indictment or information , at such time as the court by rule or otherwise may
prescribe, the names of other witnesses the prosecuting attorney proposes to call. A
so to endorse those names does not affect the validity or sufficiency of the
information, but the court in which the indictment or information was filed , upon
of the defendant, shall must direct the names of those witnesses to be endorsed
application of the defendant. No The court may not allow a
continuance may be allowed
because of the failure to endorse any of those names unless the application was made at the
earliest opportunity and then only if a continuance is necessary in the name of justice.
Rule 7 was amended effective March 1, 1990; January 1, 1995; March 1, 1996; ___________.
Rule 7 is an adaptation of Fed.R.Crim.P. 7, and controls
with respect to all
informations. Although North Dakota provides that a defendant may be proceeded
prosecuted by indictment or information, indictments are seldom used.
Subdivision (a) was amended, effective January 1, 1995, in response to county court elimination. The amendment allows misdemeanors to be charged by complaint in district court, and for the inclusion of misdemeanor charges with felony charges in an indictment or information.
Subdivision (a) was amended, effective March 1, 1996, to clarify that even though a felony is initially charged by complaint, the subsequent prosecution must be by indictment or information.
Subdivision (b) entitled "Waiver of Indictment" is retained in title and number only to
conform with the outline and form of
the Federal Rules Fed.R.Crim.P.
7. Article I, Section
10 of the North Dakota Constitution provides that an individual must be proceeded
prosecuted by indictment in cases of felony unless otherwise provided by the
legislature, but in all cases either by information or indictment. Since the
legislature has seen fit to provide provided the
State state with an alternative to a prosecution
other than by indictment in N.D.C.C. Section 29-09-02, it follows that
under the State
Constitution state constitution, there is no right in the accused to demand
indictment. See N.D.C.C. § 29-09-02.
The language of
Subdivision subdivision (c), "must be carried on
in the name * * * of the
State of North Dakota", does not mandate a change in the style of prosecution before
municipal courts. The purpose of the indictment or information is to inform the defendant
of the precise offense of which the defendant is accused so that the defendant may prepare
the defendant''s defense and further that a judgment thereon will safeguard the
from subsequent prosecution for the same offense. The language employed in
subdivision (c) is intended to provide the defendant with the Sixth Amendment
to "be informed of the nature and the cause of the accusation * * * ." With this view in
mind, Subdivision subdivision (c) is established for the benefit of the
defendant and is
intended simply to provide a means by which the defendant can be properly informed of the
proceedings without jeopardy to the prosecution.
Subdivisions (c) and (g) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
The purpose of subdivision (d) is to protect the defendant against prejudicial allegations of irrelevant or immaterial facts.
Rule 7 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 January 29-20, 2004, pages 24-25; January 26-27, 1995, pages 3-5; January 27-28, 1994, pages 8-9; September 23-24, 1993, pages 8-10; April 20, 1989, page 4; December 3, 1987, page 15; March 23-25, 1972, pages 3-11; December 11-12, 1968, pages 1-2; July 25-26, 1968, pages 1-4.
SUPERSEDED: N.D.C.C. §§ 29-09-01, 29-09-03, 29-09-04, 29-09-05, Chapter 29-11.
CONSIDERED: N.D.C.C. §§ 29-09-02, 29-09-06, 29-09-07.
CROSS REFERENCES: N.D.C.C. Ch. 29-10.1 (Grand Jury).