RULE 7. THE INDICTMENT AND THE INFORMATION
1 (a) When Used.
2 (1) Felony. All felony prosecutions in the district court must be by
3 indictment after grand jury inquiry or by information.
4 (2) Misdemeanor. All misdemeanor and other prosecutions in the district
5 court, including appeals, must be by indictment, information, or complaint.
6 (b) Waiver of Indictment. [Intentionally omitted].
7 (c) Nature and Contents.
8 (1) In General. The indictment or the information must name or otherwise
9 identify the defendant, and must be a plain, concise, and definite written statement
10 of the essential facts constituting the elements of the offense charged. It must be
11 signed by the prosecuting attorney. Except for appeals from municipal court and
12 municipal ordinance cases transferred under N.D.C.C. § 40-18-06.2, all
13 prosecutions must be carried on in the name and by the authority of the State of
14 North Dakota and must conclude "against the peace and dignity of the State of
15 North Dakota." Except as required by this rule, the indictment or information need
16 not contain a formal commencement, a formal conclusion, or any other matter not
17 necessary to the statement. A count may incorporate by reference an allegation
18 made in another count. A count may allege that the means by which the defendant
19 committed the offense are unknown or that the defendant committed it by one or
20 more specific means. For each count, the indictment or information must give the
21 official or customary citation of the statute, rule, regulation, or other provision of
22 law which the defendant is alleged to have violated.
23 (2) Citation Error. Unless the defendant was prejudicially misled, neither an
24 error in the citation nor its omission is a ground to dismiss the indictment or
25 information or to reverse a conviction.
26 (d) Surplusage. On motion of either party or on its own motion, the court
27 may strike surplusage from the information or indictment.
28 (e) Amending an Information. Unless an additional or different offense is
29 charged or a substantial right of the defendant is prejudiced, the court may permit
30 an information to be amended at any time before the verdict or finding. If the
31 prosecuting attorney chooses not to pursue a charge contained in the initial
32 information, a dismissal of that charge must be stated in the amended information.
33 (f) Bill of Particulars. The court may direct the filing of a bill of particulars.
34 The defendant may move for a bill of particulars before arraignment or within one
35 day after arraignment or at a later time if the court permits. The motion must be in
36 writing and must specify the particulars sought by the defendant. A bill of
37 particulars must be granted if the court finds it necessary to protect the defendant
38 against a second prosecution for the same offense or to enable the defendant to
39 adequately prepare for trial. A bill of particulars may be amended at any time
40 subject to such conditions as justice requires.
41 (g) Names of Witnesses to Be Endorsed on Indictment or Information.
42 When an indictment or information is filed, the names of all the witnesses on
43 whose evidence the indictment or information was based must be endorsed on it
44 before it is presented. The prosecuting attorney, at a time the court prescribes by
45 rule or otherwise, must endorse on the indictment or information the names of
46 other witnesses the prosecuting attorney proposes to call. A failure to endorse
47 those names does not affect the validity or sufficiency of the indictment or
48 information, but the court in which the indictment or information was filed must
49 direct the names of those witnesses to be endorsed on application of the defendant.
50 The court may not allow a continuance because of the failure to endorse any of
51 those names unless the application was made at the earliest opportunity and then
52 only if a continuance is necessary in the name of justice.
53 EXPLANATORY NOTE
54 Rule 7 was amended effective March 1, 1990; January 1, 1995; March 1,
55 1996; March 1, 2006; March 1, 2007; August 1, 2011; March 1,
56 2013: March 1, 2016.
57 Rule 7 is an adaptation of Fed.R.Crim.P. 7 and controls all indictments and
58 informations. Although North Dakota provides that a defendant may be prosecuted
59 by indictment or information, indictments are seldom used.
60 Subdivision (a) was amended, effective January 1, 1995, in response to
61 county court elimination. The amendment allows misdemeanors to be charged by
62 complaint in district court, and for the inclusion of misdemeanor charges with
63 felony charges in an indictment or information.
64 Subdivision (a) was amended, effective March 1, 1996, to clarify that even
65 though a felony is initially charged by complaint, the subsequent prosecution must
66 be by indictment or information.
67 Subdivision (a) was amended, effective August 1, 2011, to delete language
68 indicating that a preliminary examination was required before commencing a
69 prosecution on an information. N.D.C.C. § 29-04-05 was amended in 2011 to
70 specify that "A prosecution is commenced when a uniform complaint and
71 summons, a complaint, or an information is filed or when a grand jury indictment
72 is returned."
73 Subdivision (b) entitled "Waiver of Indictment" is retained in title and
74 number only to conform with the outline and form of Fed.R.Crim.P. 7. Article I,
75 Section 10 of the North Dakota Constitution provides that an individual must be
76 prosecuted by indictment in cases of felony unless otherwise provided by the
77 legislature, but in all cases either by information or indictment. Since the
78 legislature has provided the state with an alternative to a prosecution by indictment
79 in N.D.C.C. § 29-09-02, it follows that under the state constitution, there is no
80 right in the accused to demand prosecution by indictment.
81 The language of subdivision (c), "must be carried on in the name * * * of
82 the State of North Dakota," does not mandate a change in the style of prosecution
83 before municipal courts. The purpose of the indictment or information is to inform
84 the defendant of the precise offense of which the defendant is accused so that the
85 defendant may prepare the defendant's defense and further that a judgment will
86 safeguard the defendant from subsequent prosecution for the same offense. The
87 language employed in subdivision (c) is intended to provide the defendant with the
88 Sixth Amendment protection to "be informed of the nature and the cause of the
89 accusation * * * ." With this view in mind, subdivision (c) is established for the
90 benefit of the defendant and is intended simply to provide a means by which the
91 defendant can be properly informed of the proceedings without jeopardy to the
93 Subdivisions (c) and (g) were amended, effective March 1, 1990. The
94 amendments are technical in nature and no substantive change is intended.
95 Subdivision (c) was amended, effective March 1, 2007, to specify that the
96 indictment or information must contain a statement of the facts that establish the
97 elements of the offense charged.
98 Subdivision (c) was amended, effective March 1, 2013, to clarify that
99 municipal ordinance cases transferred to district court under N.D.C.C. §
100 40-18-06.2 are not prosecuted in the name of the State. When a municipal court
101 case is appealed to district court, Rule 37 governs procedure.
102 The purpose of subdivision (d) is to protect the defendant against
103 prejudicial allegations of irrelevant or immaterial facts.
104 Subdivision (e) was amended, effective March 1, 2016, to require a
105 dismissal to be stated in the amended information if the prosecuting attorney
106 chooses not to pursue charges raised in the initial information.
107 Rule 7 was amended, effective March 1, 2006, in response to the December
108 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and
109 organization of the rule were changed to make the rule more easily understood and
110 to make style and terminology consistent throughout the rules.
111 SOURCES: Joint Procedure Committee Minutes of September 30, 2011,
112 pages 18-19; April 28-29, 2011, pages 17-18; January 26, 2006, page 3; January
113 29-30, 2004, pages 24-25; January 26-27, 1995, pages 3-5; January 27-28, 1994,
114 pages 8-9; September 23-24, 1993, pages 8-10; April 20, 1989, page 4; December
115 3, 1987, page 15; March 23-25, 1972, pages 3-11; December 11-12, 1968, pages
116 1-2; July 25-26, 1968, pages 1-4.
117 STATUTES AFFECTED:
118 SUPERSEDED: N.D.C.C. §§ 29-09-01, 29-09-03, 29-09-04, 29-09-05,
119 Chapter 29-11.
120 CONSIDERED: N.D.C.C. §§ 29-09-02, 29-09-06, 29-09-07; 40-18-06.2.
121 CROSS REFERENCES: N.D.C.C. ch. 29-10.1 (Grand Jury);
122 N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken).