RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE
(1) Appearance upon an arrest. An officer or other person making an arrest must take
the arrested person without unnecessary delay before the nearest available magistrate.(b) Statement by the magistrate at the initial appearance.
(2) Arrest Without a Warrant. If an arrest is made without a warrant, the magistrate
must promptly determine whether probable cause exists under Rule 4(a). If probable cause
exists to believe that the arrested person has committed a criminal offense, a complaint must
be filed in the county where the offense was allegedly committed. A copy of the complaint
must be given within a reasonable time to the arrested person and to any magistrate before
whom the arrested person is brought, if other than the magistrate with whom the complaint
(1) In all cases. The magistrate must inform the defendant of the following:(c) Right to preliminary examination.
(A) the charge against the defendant and any accompanying affidavit;(2) Felonies. If the defendant is charged with a felony, the magistrate must inform the
defendant also of the defendant's right to a preliminary examination and the defendant's right
to the assistance of counsel at the preliminary examination.
(B) the defendant's right to remain silent; that any statement made by the defendant
may later be used against the defendant;
(C) the defendant's right to the assistance of counsel before making any statement or
answering any questions;
(D) the defendant's right to be represented by counsel at each and every stage of the
(E) if the offense charged is one for which counsel is required, the defendant's right
to have legal services provided at public expense to the extent that the defendant is unable
to pay for the defendant's own defense without undue hardship; and
(F) the defendant's right to be admitted to bail under Rule 46.
(3) Misdemeanors. If the defendant is charged with a misdemeanor, the magistrate
must inform the defendant also of the defendant's right to trial by jury in all cases as provided
by law and of the defendant's right to appear and defend in person or by counsel.
(1) Waiver.(d) Interactive television.
(A) If the offense charged is a felony, the defendant has the right to a preliminary
examination. The defendant may waive the right to preliminary examination at the initial
appearance if assisted by counsel.(2) Non-waiver. 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. A
magistrate of the county in which the offense was allegedly committed must conduct the
preliminary examination. The magistrate must admit the defendant to bail under the
provisions of Rule 46.
(B) If the defendant is assisted by counsel and waives preliminary examination and
the magistrate is a judge of the district court, the defendant may be permitted to plead to the
offense charged in the complaint at the initial appearance.
(C) If the defendant waives preliminary examination and does not plead at the initial
appearance, an arraignment must be scheduled.
(D) The magistrate must admit the defendant to bail under the provisions of Rule 46.
Interactive television may be used to conduct an appearance
under this rule as permitted by N.D. Sup. Ct. Admin. R 52.(e) Uniform Complaint and Summons. Notwithstanding Rule 5(a), a uniform complaint and summons may be used in lieu of a complaint and appearance before a magistrate, whether an arrest is made or not, for an offense that occurs in an officer's presence or for a motor vehicle or game and fish offense. When a uniform complaint and summons is issued for a felony offense, the prosecuting attorney must also subsequently file a complaint that complies with Rule 5(a). An individual held in custody must be brought before a magistrate for an initial appearance without unnecessary delay.
Rule 5 was amended effective March 1, 1990; January 1, 1995; March 1, 2006; June
1, 2006; March 1, 2010
Rule 5 is derived from Fed.R.Crim.P. 5. Rule 5 is designed to advise the defendant
of the charge against the defendant and to inform the defendant of the defendant's rights. This
procedure differs from arraignment under Rule 10 in that the defendant is not called upon to
Subdivision (a) provides that an arrested person must be taken before the magistrate
"without unnecessary delay." Unnecessary delay in bringing a person before a magistrate is
one factor in the totality of circumstances to be considered in determining whether
incriminating evidence obtained from the accused was given voluntarily.
Subdivision (a) was amended, effective January 1, 1995, to clarify that a "prompt"
judicial determination of probable cause is required in warrantless arrest cases.
Subdivision (b) is designed to carry into effect the holding of Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). Because the Miranda
rule is constitutionally based, it applies to all officers whether state or federal. One should
note that the protections required by Miranda apply as soon as a person "has been taken into
custody or otherwise deprived of his freedom of action in any significant way", while the
requirement that an accused be taken before a magistrate is applicable only to an "arrested
person". The Miranda decision is based upon the Fifth Amendment privilege against self-incrimination and holds that no statement obtained by interrogation of a person in custody
is admissible, unless, before the interrogation begins, the accused has been effectively
warned of the accused's rights, including the right not to answer questions and the right to
have counsel present.
Subdivision (b) specifies the action which must be taken by the magistrate.
Subparagraphs (b)(1)(A), (b)(1)(B), and (b)(1)(C) are stated by Miranda to be absolute
prerequisites to interrogation and cannot be dispensed with on even the strongest showing
that the person in custody was aware of those rights.
Paragraph (b)(1) was amended, effective June 1, 2006, to remove a reference to court
appointment of counsel for indigents. Courts ceased appointing counsel for indigents on
January 1, 2006, when the North Dakota Commission on Legal Counsel for Indigents became
responsible for defense of indigents.
Paragraph (b)(2) provides an additional requirement to the instructions given by the
magistrate in paragraph (b)(1) when the charge is a felony. It requires the magistrate to
inform the defendant of the right to a preliminary examination. The Sixth Amendment right
to counsel applies to a preliminary examination granted under state law because the
preliminary examination is a critical stage of the state's criminal process.
Subdivisions (b) and (c) were amended, effective March 1, 1990. The amendments
track the 1987 amendments to Fed.R.Crim.P. 5, which are technical in nature, and no
substantive change is intended.
Subdivision (c) was amended, effective January 1, 1995, in response to elimination
of county courts and to ensure that a defendant is not called upon to waive the preliminary
examination or to plead without the assistance of counsel at the initial appearance.
Subdivision (d) was amended, effective March 1, 2004, to permit the use of interactive
television to conduct initial proceedings. Subdivision (d) was amended, effective March 1,
2006, to reference N.D.Sup.Ct.Admin.R. 52, which governs proceedings conducted by
interactive television.Subdivision (e) was added, effective March 1, 2010, to provide a procedure for
using the uniform complaint and summons. Statutory provisions governing the uniform
complaint and summons, which is commonly referred to as the “uniform citation,” are in
N.D.C.C. §§ 20.1-02-14.1 and 29-05-31.
Rule 5 was amended, effective March 1, 2006, 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 May 21-22, 2009, pages 2-10;
April 27-28, 2006, pages 2-5, 15-17; January 29-30, 2004, pages 22-23; September 26-27, 2002, pages
12-13; January 27-28, 1994, pages 3-5; September 23-24, 1993, pages 4-7; April 20, 1989,
page 4; December 3, 1987, page 15; February 22-23, 1973, page 18; March 23-24, 1972,
pages 2-3, 11-12; January 27, 1972, pages 17-22; November 21-22, 1969, pages 2, 8-9, 17-19; May 3-4, 1968, pages 1-2; January 26-27, 1968, pages 7-9.
SUPERSEDED: N.D.C.C. §§ 29-05-04, 29-05-11, 29-05-17, 29-05-19, 29-07-01, 29-07-02, 29-07-04, 29-07-05, 29-07-07, 29-07-08, 29-07-09, 29-07-10, 33-12-07, 33-12-09.
CONSIDERED: N.D.C.C. §§ 20.1-02-14.1, 29-05-31,
29-07-03, 29-07-06, 40-18-15, 40-18-16, 40-18-18.
CROSS REFERENCES: N.D.R.Crim.P. 5.1 (Preliminary Examination); N.D.R.Crim.P. 10
(Arraignment); N.D.R.Crim.P. 35 (Correcting or Reducing a Sentence); N.D.R.Crim.P. 43
(Defendant's Presence); N.D.R.Crim.P. 44 (Right to and Assignment of Counsel); N.D. Sup.
Ct. Admin. R. 52 (Interactive Television).