RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE (a) General.
(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.
(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 is filed.
(b) Statement by the Magistrate at the Initial Appearance.
(1) In All Cases. The magistrate must inform the defendant of the following:
(A) the charge against the defendant and any accompanying affidavit;
(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 court-appointed 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.
(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.
(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.
(c) Right to Preliminary Examination.
(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.
(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.
(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.
(d) Interactive television may be used to conduct an appearance under this rule as
permitted by N.D. Sup. Ct. Admin. R 52.
Rule 5 was amended effective March 1, 1990; January 1, 1995; March 1, 2006; June 1, 2006.
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 plead.
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.
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 April 27-28, 2006, pages___; 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.