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.
15 (A) The magistrate must establish whether the victim was given a "Marsy's
16 card" as required by N.D. Const. Art. I, § 25(1)(s).
17 (B) The magistrate must inform the defendant of the following:
(A) (i) the charge against the defendant and any
(B) (ii) the defendant's right to remain silent; that any
statement made by the
20 defendant may later be used against the defendant;
(C) (iii) the defendant's right to the assistance of
counsel before making any
22 statement or answering any questions;
(D) (iv) the defendant's right to be represented by
counsel at each and every
24 stage of the proceedings;
(E) (v) if the offense charged is one for which counsel
is required, the
26 defendant's right to have legal services provided at public expense to the extent
27 that the defendant is unable to pay for the defendant's own defense without undue
28 hardship; and
(F) (vi) the defendant's right to be admitted to bail
under Rule 46.
30 (2) Felonies. If the defendant is charged with a felony, the magistrate must
31 inform the defendant also of:
32 (A) the defendant's right to a preliminary hearing;
33 (B) the defendant's right to the assistance of counsel at the preliminary
35 (C) that a defendant who is not a United States citizen may request that an
36 attorney for the state or a law enforcement officer notify a consular officer from
37 the defendant's country of nationality that the defendant has been arrested.
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 Hearing.
43 (1) Waiver. (A) If the offense charged is a felony, the defendant has the right
44 to a preliminary hearing. The defendant may waive the right to preliminary hearing
45 at the initial appearance if assisted by counsel.
46 (B) If the defendant is assisted by counsel and waives preliminary hearing
47 and the magistrate is a judge of the district court, the defendant may be permitted
48 to plead to the offense charged in the complaint or information at the initial
50 (C) If the defendant waives preliminary hearing and does not plead at the
51 initial appearance, an arraignment must be scheduled.
52 (D) The magistrate must admit the defendant to bail under the provisions of
53 Rule 46.
54 (2) Non-waiver. If the defendant does not waive preliminary hearing, the
55 defendant may not be called upon to plead to a felony offense at the initial
56 appearance. A magistrate of the county in which the offense was allegedly
57 committed must conduct the preliminary hearing. The magistrate must admit the
58 defendant to bail under the provisions of Rule 46.
59 (d) Reliable Electronic Means. Contemporaneous audio or audiovisual
60 transmission by reliable electronic means may be used to conduct an appearance
61 under this rule as permitted by N.D. Sup. Ct. Admin. R 52.
62 (e) Uniform Complaint and Summons.
63 (1) In General. Notwithstanding Rule 5(a), a uniform complaint and
64 summons may be used in lieu of a complaint and appearance before a magistrate,
65 whether an arrest is made or not, for an offense that occurs in an officer's presence
66 or for a motor vehicle or game and fish offense. An individual held in custody
67 must be brought before a magistrate for an initial appearance without unnecessary
69 (2) Duty of Prosecuting Attorney. When a uniform complaint and summons
70 is issued for a felony offense, the prosecuting attorney must also subsequently file
71 a complaint or information that complies with Rule 5(a). If the prosecuting
72 attorney after review declines to prosecute a charge that has been filed with the
73 court on a uniform complaint and summons, a dismissal of the charge must be
74 stated on the complaint or information or filed separately with the court.
75 EXPLANATORY NOTE
76 Rule 5 was amended effective March 1, 1990; January 1, 1995; March 1,
77 2006; June 1, 2006; March 1, 2010; August 1, 2011; March 1, 2016; March 1,
79 Rule 5 is derived from Fed.R.Crim.P. 5. Rule 5 is designed to advise the
80 defendant of the charge against the defendant and to inform the defendant of the
81 defendant's rights. This procedure differs from arraignment under Rule 10 in that
82 the defendant is not called upon to plead.
83 Subdivision (a) provides that an arrested person must be taken before the
84 magistrate "without unnecessary delay." Unnecessary delay in bringing a person
85 before a magistrate is one factor in the totality of circumstances to be considered in
86 determining whether incriminating evidence obtained from the accused was given
88 Subdivision (a) was amended, effective January 1, 1995, to clarify that a
89 "prompt" judicial determination of probable cause is required in warrantless arrest
91 Subdivision (b) is designed to carry into effect the holding of Miranda v.
92 Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).
93 Because the Miranda rule is constitutionally based, it applies to all officers
94 whether state or federal. One should note that the protections required by Miranda
95 apply as soon as a person "has been taken into custody or otherwise deprived of his
96 freedom of action in any significant way," while the requirement that an accused
97 be taken before a magistrate is applicable only to an "arrested person." The
98 Miranda decision is based upon the Fifth Amendment privilege against
99 self-incrimination, and holds that no statement obtained by interrogation of a
100 person in custody is admissible, unless, before the interrogation begins, the
101 accused has been effectively warned of the accused's rights, including the right not
102 to answer questions and the right to have counsel present.
103 Subdivision (b) specifies the action which must be taken by the magistrate.
104 Subparagraphs (b)(1)
and (b)(1) (C)(B)(iii) are stated by
105 Miranda to be absolute prerequisites to interrogation and cannot be dispensed with
106 on even the strongest showing that the person in custody was aware of those rights.
107 Paragraph (b)(1) was amended, effective June 1, 2006, to remove a
108 reference to court appointment of counsel for indigents. Courts ceased appointing
109 counsel for indigents on January 1, 2006, when the North Dakota Commission on
110 Legal Counsel for Indigents became responsible for defense of indigents.
111 Paragraph (b)(1) was amended, effective__________, to add a requirement
112 that the magistrate establish whether the victim was given a "Marsy's card" as
113 required by N.D. Const. Art. I, § 25(1)(s). "Victim" is defined in N.D. Const. Art.
114 I, § 25(4).
115 Paragraph (b)(2) provides an additional requirement to the instructions
116 given by the magistrate in paragraph (b)(1) when the charge is a felony. It requires
117 the magistrate to inform the defendant of the right to a preliminary hearing. The
118 Sixth Amendment right to counsel applies to a preliminary hearing granted under
119 state law because the preliminary hearing is a critical stage of the state's criminal
121 Paragraph (b)(2) was amended, effective March 1, 2016, to require the
122 defendant in a felony case to be informed at the initial appearance of the right of a
123 defendant who is not a U.S. citizen to request that a consular officer be informed
124 of the defendant's arrest. This amendment was based on the December 1, 2014
125 amendment to Fed.R.Crim.P. 5.
126 Subdivisions (b) and (c) were amended, effective March 1, 1990. The
127 amendments track the 1987 amendments to Fed.R.Crim.P. 5, which are technical
128 in nature, and no substantive change is intended.
129 Subdivision (c) was amended, effective January 1, 1995, in response to
130 elimination of county courts and to ensure that a defendant is not called upon to
131 waive the preliminary hearing or to plead without the assistance of counsel at the
132 initial appearance.
133 Subdivision (d) was amended, effective March, 1, 2004, to permit the use of
134 interactive television to conduct initial proceedings. Subdivision (d) was amended,
135 effective March 1, 2006, to reference N.D.Sup.Ct.Admin.R. 52, which governs
136 proceedings conducted by interactive television. Subdivision (d) was further
137 amended, March 1, 2016, to allow the use of contemporaneous audio or
138 audiovisual transmission by reliable electronic means to conduct initial
140 Subdivision (e) was added, effective March 1, 2010, to provide a procedure
141 for using the uniform complaint and summons. Statutory provisions governing the
142 uniform complaint and summons, which is commonly referred to as the "uniform
143 citation," are in N.D.C.C. §§ 20.1-02-14.1 and 29-05-31.
144 Subdivision (e) was amended, effective March 1, 2016, to require the
145 prosecuting attorney to file a written dismissal if the prosecuting attorney decides
146 not to pursue a charge filed with the court on a uniform complaint and summons.
147 Rule 5 was amended, effective March 1, 2006, in response to the December
148 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and
149 organization of the rule were changed to make the rule more easily understood and
150 to make style and terminology consistent throughout the rules.
151 Rule 5 was amended, effective August 1, 2011, to include new language
152 indicating that either "the complaint or information" can be used as a charging
153 document. N.D.C.C. § 29-04-05 was amended in 2011 to specify that "A
154 prosecution is commenced when a uniform complaint and summons, a complaint,
155 or an information is filed or when a grand jury indictment is returned."
156 Rule 5 was amended, effective March 1, 2017, to replace the term
157 "preliminary examination" with "preliminary hearing" throughout the rule.
158 SOURCES: Joint Procedure Committee Minutes of _______________;
159 May 12-13, 2016, page 29; September 24-25, 2015, page 15; April 23-24, 2015,
160 pages 14-15; April 28-29, 2011, pages 17-18; May 21-22, 2009, pages 2-10; April
161 27-28, 2006, pages 2-5, 15-17; January 29-30, 2004, pages 22-23; September
162 26-27, 2002, pages 12-13; January 27-28, 1994, pages 3-5; September 23-24,
163 1993, pages 4-7; April 20, 1989, page 4; December 3, 1987, page 15;February
164 22-23, 1973, page 18; March 23-24, 1972, pages 2-3, 11-12; January 27, 1972,
165 pages 17-22; November 21-22, 1969, pages 2, 8-9, 17-19; May 3-4, 1968, pages
166 1-2; January 26-27, 1968, pages 7-9.
167 STATUTES AFFECTED:
168 SUPERSEDED: N.D.C.C. §§ 29-05-04, 9-05-11, 29-05-17, 29-05-19,
169 29-07-01, 29-07-02, 29-07-04, 29-07-05, 29-07-07, 29-07-08, 29-07-09, 29-07-10,
170 33-12-07, 33-12-09.
171 CONSIDERED: N.D. Const. Art. I, § 25; N.D.C.C. §§ 20.1-02-14.1,
172 29-04-05, 29-05-31, 29-07-03, 29-07-06, 40-18-15, 40-18-16, 40-18-18.
173 CROSS REFERENCES: N.D.R.Crim.P. 5.1 (Preliminary Hearing);
174 N.D.R.Crim.P. 10 (Arraignment); N.D.R.Crim.P. 35 (Correcting or Reducing a
175 Sentence); N.D.R.Crim.P. 43 (Defendant's Presence); N.D.R.Crim.P. 44 (Right to
176 and Assignment of Counsel); N.D.Sup.Ct.Admin.R. 52 (Contemporaneous
177 Transmission by Reliable Electronic Means).