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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 (A) the defendant's right to a preliminary
31 (B) the defendant's right to the assistance of counsel at the preliminary
33 (C) 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 and that if the defendant is convicted of a misdemeanor crime
40 involving domestic violence, the defendant may be prohibited from using or
41 possessing firearms.
42 (c) Right to Preliminary
43 (1) Waiver.
44 (A) If the offense charged is a felony, the defendant has the right to a
examination hearing. The defendant may
waive the right to
examination hearing at the initial
appearance if assisted by counsel.
47 (B) If the defendant is assisted by counsel and waives preliminary
examination hearing and the magistrate is a judge of the
district court, the
49 defendant may be permitted to plead to the offense charged in the complaint or
50 information at the initial appearance.
51 (C) If the defendant waives preliminary
hearing and does not
52 plead at 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
56 hearing, the defendant may not be called upon to plead to a felony offense at the
57 initial appearance. A magistrate of the county in which the offense was allegedly
58 committed must conduct the preliminary
hearing. The magistrate
59 admit the defendant to bail under the provisions of Rule 46.
60 (d) Reliable Electronic Means. Contemporaneous audio or audiovisual
61 transmission by reliable electronic means may be used to conduct an appearance
62 under this rule as permitted by N.D. Sup. Ct. Admin. R 52.
63 (e) Uniform Complaint and Summons.
64 (1) In General. Notwithstanding Rule 5(a), a uniform complaint and
65 summons may be used in lieu of a complaint and appearance before a magistrate,
66 whether an arrest is made or not, for an offense that occurs in an officer's presence
67 or for a motor vehicle or game and fish offense. An individual held in custody
68 must be brought before a magistrate for an initial appearance without unnecessary
70 (2) Duty of Prosecuting Attorney. When a uniform complaint and summons
71 is issued for a felony offense, the prosecuting attorney must also subsequently file
72 a complaint or information that complies with Rule 5(a). If the prosecuting
73 attorney after review declines to prosecute a charge that has been filed with the
74 court on a uniform complaint and summons, a dismissal of the charge must be
75 stated on the complaint or information or filed separately with the court.
76 EXPLANATORY NOTE
77 Rule 5 was amended effective March 1, 1990; January 1, 1995; March 1,
78 2006; June 1, 2006; March 1, 2010; August 1, 2011; March 1,
80 Rule 5 is derived from Fed.R.Crim.P. 5. Rule 5 is designed to advise the
81 defendant of the charge against the defendant and to inform the defendant of the
82 defendant's rights. This procedure differs from arraignment under Rule 10 in that
83 the defendant is not called upon to plead.
84 Subdivision (a) provides that an arrested person must be taken before the
85 magistrate "without unnecessary delay." Unnecessary delay in bringing a person
86 before a magistrate is one factor in the totality of circumstances to be considered in
87 determining whether incriminating evidence obtained from the accused was given
89 Subdivision (a) was amended, effective January 1, 1995, to clarify that a
90 "prompt" judicial determination of probable cause is required in warrantless arrest
92 Subdivision (b) is designed to carry into effect the holding of Miranda v.
93 Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).
94 Because the Miranda rule is constitutionally based, it applies to all officers
95 whether state or federal. One should note that the protections required by Miranda
96 apply as soon as a person "has been taken into custody or otherwise deprived of his
97 freedom of action in any significant way," while the requirement that an accused
98 be taken before a magistrate is applicable only to an "arrested person." The
99 Miranda decision is based upon the Fifth Amendment privilege against
100 self-incrimination, and holds that no statement obtained by interrogation of a
101 person in custody is admissible, unless, before the interrogation begins, the
102 accused has been effectively warned of the accused's rights, including the right not
103 to answer questions and the right to have counsel present.
104 Subdivision (b) specifies the action which must be taken by the magistrate.
105 Subparagraphs (b)(1)(A), (b)(1)(B), and (b)(1)(C) are stated by Miranda to be
106 absolute prerequisites to interrogation and cannot be dispensed with on even the
107 strongest showing that the person in custody was aware of those rights.
108 Paragraph (b)(1) was amended, effective June 1, 2006, to remove a
109 reference to court appointment of counsel for indigents. Courts ceased appointing
110 counsel for indigents on January 1, 2006, when the North Dakota Commission on
111 Legal Counsel for Indigents became responsible for defense of indigents.
112 Paragraph (b)(2) provides an additional requirement to the instructions
113 given by the magistrate in paragraph (b)(1) when the charge is a felony. It requires
114 the magistrate to inform the defendant of the right to a preliminary
115 hearing. The Sixth Amendment right to counsel applies to a preliminary
examination hearing granted under state law because
the preliminary examination
117 hearing is a critical stage of the state's criminal process.
118 Paragraph (b)(2) was amended, effective March 1, 2016, to require the
119 defendant in a felony case to be informed at the initial appearance of the right of a
120 defendant who is not a U.S. citizen to request that a consular officer be informed
121 of the defendant's arrest. This amendment was based on the December 1, 2014
122 amendment to Fed.R.Crim.P. 5.
123 Paragraph (b)(3) was amended,_________________, to require
124 misdemeanor defendants to be advised that conviction of a misdemeanor crime
125 involving domestic violence may result in the defendant being prohibited from
126 using or possessing firearms.
127 Subdivisions (b) and (c) were amended, effective March 1, 1990. The
128 amendments track the 1987 amendments to Fed.R.Crim.P. 5, which are technical
129 in nature, and no substantive change is intended.
130 Subdivision (c) was amended, effective January 1, 1995, in response to
131 elimination of county courts and to ensure that a defendant is not called upon to
132 waive the preliminary
examination hearing or to plead
without the assistance of
133 counsel at the initial appearance.
134 Subdivision (d) was amended, effective March, 1, 2004, to permit the use of
135 interactive television to conduct initial proceedings. Subdivision (d) was amended,
136 effective March 1, 2006, to reference N.D.Sup.Ct.Admin.R. 52, which governs
137 proceedings conducted by interactive television. Subdivision (d) was further
138 amended, March 1, 2016, to allow the use of contemporaneous audio or
139 audiovisual transmission by reliable electronic means to conduct initial
141 Subdivision (e) was added, effective March 1, 2010, to provide a procedure
142 for using the uniform complaint and summons. Statutory provisions governing the
143 uniform complaint and summons, which is commonly referred to as the "uniform
144 citation," are in N.D.C.C. §§ 20.1-02-14.1 and 29-05-31.
145 Subdivision (e) was amended, effective March 1, 2016, to require the
146 prosecuting attorney to file a written dismissal if the prosecuting attorney decides
147 not to pursue a charge filed with the court on a uniform complaint and summons.
148 Rule 5 was amended, effective March 1, 2006, in response to the December
149 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and
150 organization of the rule were changed to make the rule more easily understood and
151 to make style and terminology consistent throughout the rules.
152 Rule 5 was amended, effective August 1, 2011, to include new language
153 indicating that either "the complaint or information" can be used as a charging
154 document. N.D.C.C. § 29-04-05 was amended in 2011 to specify that "A
155 prosecution is commenced when a uniform complaint and summons, a complaint,
156 or an information is filed or when a grand jury indictment is returned."
157 Rule 5 was amended, effective____________, to replace the term
158 "preliminary examination" with "preliminary hearing" throughout the rule.
159 SOURCES: Joint Procedure Committee Minutes of______________; May
160 12-13, 2016, page 29; September 24-25, 2015, page 15; April 23-24, 2015, pages
161 14-15; April 28-29, 2011, pages 17-18; May 21-22, 2009, pages 2-10; April 27-28,
162 2006, pages 2-5, 15-17; January 29-30, 2004, pages 22-23; September 26-27,
163 2002, pages 12-13; January 27-28, 1994, pages 3-5; September 23-24, 1993, pages
164 4-7; April 20, 1989, page 4; December 3, 1987, page 15;February 22-23, 1973,
165 page 18; March 23-24, 1972, pages 2-3, 11-12; January 27, 1972, pages 17-22;
166 November 21-22, 1969, pages 2, 8-9, 17-19; May 3-4, 1968, pages 1-2; January
167 26-27, 1968, pages 7-9.
168 STATUTES AFFECTED:
169 SUPERSEDED: N.D.C.C. §§ 29-05-04, 9-05-11, 29-05-17, 29-05-19,
170 29-07-01, 29-07-02, 29-07-04, 29-07-05, 29-07-07, 29-07-08, 29-07-09, 29-07-10,
171 33-12-07, 33-12-09.
172 CONSIDERED: N.D.C.C. §§ 20.1-02-14.1, 29-04-05, 29-05-31, 29-07-03,
173 29-07-06, 40-18-15, 40-18-16, 40-18-18.
174 CROSS REFERENCES: N.D.R.Crim.P. 5.1 (Preliminary
175 Hearing); N.D.R.Crim.P. 10 (Arraignment); N.D.R.Crim.P. 35 (Correcting or
176 Reducing a Sentence); N.D.R.Crim.P. 43 (Defendant's Presence); N.D.R.Crim.P.
177 44 (Right to and Assignment of Counsel); N.D.Sup.Ct.Admin.R. 52
178 (Contemporaneous Transmission by Reliable Electronic Means).