TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 10, 2015
RE: Rule 3, N.D.R.Crim.P., The Complaint; Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate; Rule 5.1, N.D.R.Crim.P., Preliminary Examination
Court administrator Sally Holewa has requested that Rules 3, 5 and 5.1 be amended to include language that would ensure that all criminal charges brought in a case are resolved. A detailed memo from Ms. Holewa is attached. She notes three specific problem areas:
1. Where the state's attorney has made a decision not to prosecute and files an amended complaint that omits some of the original charges but does not file a written dismissal of the omitted charges or put the dismissal on the record during a court proceeding;
2. Where the state's attorney has verbally notified a clerk that they are not going to prosecute a charge that was initially filed by citation or Uniform Complaint and Summons but does not file a dismissal of the charges; and
3. Where a judge does not find probable cause for a charge but the judge does not dismiss the charge on the record and neither the judge nor the prosecutor files a dismissal.
Staff has prepared proposed amendments to Rules 3, 5, and 5.1 consistent with Ms. Holewa's suggestions. The proposed amendments are attached. The change to Rule 3 would require the prosecutor to file a written dismissal of charges included in the initial complaint but dropped in an amended complaint. The change to Rule 5 would require the prosecutor to file a written dismissal of a charge originally filed in a Uniform Complaint and Summons but later dropped. The change to Rule 5.1 would require a magistrate to formally dismiss the charge if the magistrate decides to discharge the defendant.
Rule 5 is currently before the Supreme Court as part of the Annual Rules Package and the draft before the committee contains changes the committee has already approved. The new proposed language in the rule is highlighted. If the committee approves the proposed amendments, it may wish to suggest to the Court to consider them along with the amendments currently before the Court.
On a somewhat related issue, attorney Mark Friese has requested the committee to discuss whether a criminal complaint should be filed in Odyssey at all if the magistrate finds no probable cause and decides to discharge the defendant. His e-mail is attached. He suggests that N.D.Sup.Ct.Admin.R. 41 may need to be modified to allow sealing of the record on motion if the complaint is filed and the magistrate later finds no probable cause. Admin. Rule 41's Section 6 already allows motions to be made to prohibit public access to court records and Section 6(a)(6) has a specific procedure applicable to dismissed criminal charges. The committee may wish to discuss whether there should be a more specific provision on criminal complaints dismissed due to lack of probable cause. A copy of Admin. Rule 41 is attached for the committee's reference.