RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE
1 (a) General.
2 (1) Appearance Upon an Arrest. An officer or other person making an arrest
3 must take the arrested person without unnecessary delay before the nearest
4 available magistrate.
5 (2) Arrest Without a Warrant. If an arrest is made without a warrant, the
6 magistrate must promptly determine whether probable cause exists under Rule
7 4(a). If probable cause exists to believe that the arrested person has committed a
8 criminal offense, a complaint or information must be filed in the county where the
9 offense was allegedly committed. A copy of the complaint or information must be
10 given within a reasonable time to the arrested person and to any magistrate before
11 whom the arrested person is brought, if other than the magistrate with whom the
12 complaint or information is filed.
13 (b) Statement by the Magistrate at the Initial Appearance.
14 (1) In All Cases. The magistrate must inform the defendant of the
16 (A) the charge against the defendant and any accompanying affidavit;
17 (B) the defendant's right to remain silent; that any statement made by the
18 defendant may later be used against the defendant;
19 (C) the defendant's right to the assistance of counsel before making any
20 statement or answering any questions;
21 (D) the defendant's right to be represented by counsel at each and every
22 stage of the proceedings;
23 (E) if the offense charged is one for which counsel is required, the
24 defendant's right to have legal services provided at public expense to the extent
25 that the defendant is unable to pay for the defendant's own defense without undue
26 hardship; and
27 (F) the defendant's right to be admitted to bail under Rule 46.
28 (2) Felonies. If the defendant is charged with a felony, the magistrate must
29 inform the defendant also of:
30 (i) the defendant's right to a preliminary examination;
and the defendant's right to the assistance
of counsel at the preliminary
33 (iii) that a defendant who is not a United States citizen may request that an
34 attorney for the state or a law enforcement officer notify a consular officer from
35 the defendant's country of nationality that the defendant has been arrested.
36 (3) Misdemeanors. If the defendant is charged with a misdemeanor, the
37 magistrate must inform the defendant also of the defendant's right to trial by jury in
38 all cases as provided by law and of the defendant's right to appear and defend in
39 person or by counsel.
40 (c) Right to Preliminary Examination.
41 (1) Waiver.
42 (A) If the offense charged is a felony, the defendant has the right to a
43 preliminary examination. The defendant may waive the right to preliminary
44 examination at the initial appearance if assisted by counsel.
45 (B) If the defendant is assisted by counsel and waives preliminary
46 examination and the magistrate is a judge of the district court, the defendant may
47 be permitted to plead to the offense charged in the complaint or information at the
48 initial appearance.
49 (C) If the defendant waives preliminary examination and does not plead at
50 the initial appearance, an arraignment must be scheduled.
51 (D) The magistrate must admit the defendant to bail under the provisions of
52 Rule 46.
53 (2) Non-waiver. If the defendant does not waive preliminary examination,
54 the defendant may not be called upon to plead to a felony offense at the initial
55 appearance. A magistrate of the county in which the offense was allegedly
56 committed must conduct the preliminary examination. The magistrate must admit
57 the defendant to bail under the provisions of Rule 46.
Interactive Television Reliable Electronic Means.
59 Contemporaneous audio or audiovisual transmission by reliable electronic means
60 may be used to conduct an appearance under this rule as permitted by N.D. Sup.
61 Ct. Admin. R 52.
62 (e) Uniform Complaint and Summons. Notwithstanding Rule 5(a), a
63 uniform complaint and summons may be used in lieu of a complaint and
64 appearance before a magistrate, whether an arrest is made or not, for an offense
65 that occurs in an officer's presence or for a motor vehicle or game and fish offense.
66 When a uniform complaint and summons is issued for a felony offense, the
67 prosecuting attorney must also subsequently file a complaint that complies with
68 Rule 5(a). An individual held in custody must be brought before a magistrate for
69 an initial appearance without unnecessary delay.
70 EXPLANATORY NOTE
71 Rule 5 was amended effective March 1, 1990; January 1, 1995; March 1,
72 2006; June 1, 2006; March 1, 2010; August 1, 2011;_____________________.
73 Rule 5 is derived from Fed.R.Crim.P. 5. Rule 5 is designed to advise the
74 defendant of the charge against the defendant and to inform the defendant of the
75 defendant's rights. This procedure differs from arraignment under Rule 10 in that
76 the defendant is not called upon to plead.
77 Subdivision (a) provides that an arrested person must be taken before the
78 magistrate "without unnecessary delay." Unnecessary delay in bringing a person
79 before a magistrate is one factor in the totality of circumstances to be considered in
80 determining whether incriminating evidence obtained from the accused was given
82 Subdivision (a) was amended, effective January 1, 1995, to clarify that a
83 "prompt" judicial determination of probable cause is required in warrantless arrest
85 Subdivision (b) is designed to carry into effect the holding of Miranda v.
86 Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).
87 Because the Miranda rule is constitutionally based, it applies to all officers
88 whether state or federal. One should note that the protections required by Miranda
89 apply as soon as a person "has been taken into custody or otherwise deprived of his
90 freedom of action in any significant way," while the requirement that an accused
91 be taken before a magistrate is applicable only to an "arrested person." The
92 Miranda decision is based upon the Fifth Amendment privilege against self-
93 incrimination, and holds that no statement obtained by interrogation of a person in
94 custody is admissible, unless, before the interrogation begins, the accused has been
95 effectively warned of the accused's rights, including the right not to answer
96 questions and the right to have counsel present.
97 Subdivision (b) specifies the action which must be taken by the magistrate.
98 Subparagraphs (b)(1)(A), (b)(1)(B), and (b)(1)(C) are stated by Miranda to be
99 absolute prerequisites to interrogation and cannot be dispensed with on even the
100 strongest showing that the person in custody was aware of those rights.
101 Paragraph (b)(1) was amended, effective June 1, 2006, to remove a
102 reference to court appointment of counsel for indigents. Courts ceased appointing
103 counsel for indigents on January 1, 2006, when the North Dakota Commission on
104 Legal Counsel for Indigents became responsible for defense of indigents.
105 Paragraph (b)(2) provides an additional requirement to the instructions
106 given by the magistrate in paragraph (b)(1) when the charge is a felony. It requires
107 the magistrate to inform the defendant of the right to a preliminary examination.
108 The Sixth Amendment right to counsel applies to a preliminary examination
109 granted under state law because the preliminary examination is a critical stage of
110 the state's criminal process.
111 Paragraph (b)(2) was amended, effective___________________, to require
112 that the defendant in a felony case be informed at the initial appearance of the right
113 of a defendant who is not a U.S. citizen to request that a consular officer be
114 informed of the defendant's arrest. This amendment was based on the December 1,
115 2014 amendment to Fed.R.Crim.P. 5.
116 Subdivisions (b) and (c) were amended, effective March 1, 1990. The
117 amendments track the 1987 amendments to Fed.R.Crim.P. 5, which are technical
118 in nature, and no substantive change is intended.
119 Subdivision (c) was amended, effective January 1, 1995, in response to
120 elimination of county courts and to ensure that a defendant is not called upon to
121 waive the preliminary examination or to plead without the assistance of counsel at
122 the initial appearance.
123 Subdivision (d) was amended, effective March, 1, 2004, to permit the use of
124 interactive television to conduct initial proceedings. Subdivision (d) was amended,
125 effective March 1, 2006, to reference N.D.Sup.Ct.Admin.R. 52, which governs
126 proceedings conducted by
interactive television electronic
means. Subdivision (d)
127 was further amended, _____________, to allow the use of contemporaneous audio
128 or audiovisual transmission by reliable electronic means to conduct initial
130 Subdivision (e) was added, effective March 1, 2010, to provide a procedure
131 for using the uniform complaint and summons. Statutory provisions governing the
132 uniform complaint and summons, which is commonly referred to as the "uniform
133 citation," are in N.D.C.C. §§ 20.1-02-14.1 and 29-05-31.
134 Rule 5 was amended, effective March 1, 2006, in response to the December
135 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and
136 organization of the rule were changed to make the rule more easily understood and
137 to make style and terminology consistent throughout the rules.
138 Rule 5 was amended, effective August 1, 2011, to include new language
139 indicating that either "the complaint or information" can be used as a charging
140 document. N.D.C.C. § 29-04-05 was amended in 2011 to specify that "A
141 prosecution is commenced when a uniform complaint and summons, a complaint,
142 or an information is filed or when a grand jury indictment is returned."
143 SOURCES: Joint Procedure Committee Minutes of April 23-24, 2015,
144 pages 14-15; April 28-29, 2011, pages 17-18; May 21-22, 2009, pages 2-10; April
145 27-28, 2006, pages 2-5, 15-17; January 29-30, 2004, pages 22-23; September 26-
146 27, 2002, pages 12-13; January 27-28, 1994, pages 3-5; September 23-24, 1993,
147 pages 4-7; April 20, 1989, page 4; December 3, 1987, page 15;February 22-23,
148 1973, page 18; March 23-24, 1972, pages 2-3, 11-12; January 27, 1972, pages 17-
149 22; November 21-22, 1969, pages 2, 8-9, 17-19; May 3-4, 1968, pages 1-2;
150 January 26-27, 1968, pages 7-9.
151 STATUTES AFFECTED:
152 SUPERSEDED: N.D.C.C. §§ 29-05-04, 9-05-11, 29-05-17, 29-05-19, 29-
153 07-01, 29-07-02, 29-07-04, 29-07-05, 29-07-07, 29-07-08, 29-07-09, 29-07-10, 33-
154 12-07, 33-12-09.
155 CONSIDERED: N.D.C.C. §§ 20.1-02-14.1, 29-04-05, 29-05-31, 29-07-03,
156 29-07-06, 40-18-15, 40-18-16, 40-18-18.
157 CROSS REFERENCES: N.D.R.Crim.P. 5.1 (Preliminary Examination);
158 N.D.R.Crim.P. 10 (Arraignment); N.D.R.Crim.P. 35 (Correcting or Reducing a
159 Sentence); N.D.R.Crim.P. 43 (Defendant's Presence); N.D.R.Crim.P. 44 (Right to
160 and Assignment of Counsel); N.D. Sup. Ct. Admin. R. 52 (
161 Contemporaneous Transmission by Reliable Electronic Means).