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