RULE 12. PLEADINGS AND PRETRIAL MOTIONS
1 (a) Pleadings. The pleadings in a criminal proceeding are the indictment,
2 information and complaint in district court, the complaint in municipal court, and
3 the pleas of not guilty and guilty.
4 (b) Pretrial Motions.
5 (1) In General. A party may raise by pretrial motion any defense, objection,
6 or request that the court can determine without a trial on the merits. Rule 47
7 applies to a pretrial motion.
Motions That May Be Made Before Trial. A party may raise by
motion any defense, objection, or request that the court can determine
trial of the general issue. Motions That May Be Made at Any
Time. A motion that
11 the court lacks jurisdiction may be made at any time while the case is pending.
12 (3) Motions That Must Be Made Before Trial. The following defenses,
13 objections and requests must be raised
before trial by
pretrial motion if the basis
14 for the motion is then reasonably available and the motion can be determined
15 without a trial on the merits:
a motion alleging a defect in instituting the
17 (i) improper venue;
18 (ii) preindictment delay
19 (iii) a violation of the right to speedy trial;
20 (iv) selective or vindictive prosecution;
21 (v) an error in the grand-jury proceeding or preliminary hearing;
a motion alleging a defect in the indictment, information, or
but at any time while the case is pending, the court may hear a claim that
indictment, information or complaint fails to invoke the court's
jurisdiction or to
state an offense; , including:
26 (i) joining two or more offenses in the same count (duplicity);
27 (ii) charging the same offense in more than one count (multiplicity);
28 (iii) lack of specificity;
29 (iv) improper joinder; and
30 (v) failure to state an offense;
a motion to suppress suppression of evidence;
a Rule 14 motion to sever severance of charges or
33 Rule 14; and
a Rule 16 motion discovery under Rule 16.
35 (4) Notice of the Prosecution's Intent to Use Evidence.
36 (A) At the Prosecution's Discretion. At the arraignment or as soon afterward
37 as practicable, the government may notify the defendant of its intent to use
38 specified evidence at trial in order to afford the defendant an opportunity to object
39 before trial under Rule 12(b)(3)(C).
40 (B) At the Defendant's Request. At the arraignment or as soon afterward as
41 practicable, the defendant may, in order to have an opportunity to move to
42 suppress evidence under Rule 12(b)(3)(C), request notice of the prosecution's
43 intent to use (in its evidence-in-chief at trial) any evidence that the defendant may
44 be entitled to discover under Rule 16.
Motion Deadline for a Pretrial Motion; Consequences
of Not Making a
46 Timely Motion.
47 (1) Setting the Deadline. The court may, at the arraignment or as soon
48 afterward as practicable, set a deadline for the parties to make pretrial motions and
49 may also schedule a motion hearing. If the court does not set one, the deadline is
50 the start of trial.
51 (2) Extending or Resetting the Deadline. At any time before trial, the court
52 may extend or reset the deadline for pretrial motions.
53 (3) Consequences or Not Making a Timely Motion Under Rule 12(b)(3). If
54 a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion
55 is untimely. But a court may consider the defense, objection, or request if the party
56 shows good cause.
57 (d) Ruling on a Motion. The court must decide every pretrial motion before
58 trial unless it finds good cause to defer a ruling. The court must not defer ruling on
59 a pretrial motion if the deferral will adversely affect a party's right to appeal. When
60 factual issues are involved in deciding a motion, the court must state its essential
61 findings on the record.
Waiver of a Defense, Objection, or Request. A party waives any
12(b)(3) defense, objection, or request not raised by the deadline the court
under Rule 12(c) or by any extension the court provides. For good cause,
may grant relief from the waiver. [Reserved]
66 (f) Recording the Proceedings. Except in municipal courts, a verbatim
67 record must be made of all proceedings at the motion hearing, including any
68 findings of fact and conclusions of law made orally by the court.
69 (g) Defendant's Continued Custody or Release Status. If the court grants a
70 motion to dismiss based on a defect in instituting the prosecution, in the complaint,
71 in the indictment, or in the information, it may order the defendant to be held in
72 custody or that bail be continued for a specified time until a new indictment,
73 information, or complaint is filed.
74 EXPLANATORY NOTE
75 Rule 12 was amended, effective January 1, 1980; September 1, 1983;
76 January 1, 1995; March 1, 2006; March 1, 2016.
77 Rule 12 is similar to Fed.R.Crim.P. 12 with modifications to conform to
78 practice in North Dakota.
79 Rule 12 was amended, effective March 1, 2006, in response to the
80 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
81 language and organization of the rule were changed to make the rule more easily
82 understood and to make style and terminology consistent throughout the rules.
83 Subdivision (a) was amended, effective September 1, 1983, to delete
84 obsolete references to the county court with increased jurisdiction and the county
85 justice court. Subdivision (a) was further amended, effective January 1, 1995, in
86 response to county court elimination. The amendment provides for use of the
87 complaint in district court.
88 All objections or defenses raised before trial must be made by a motion to
89 dismiss or by motion to grant appropriate relief as provided in these rules.
90 Selection of a wrong plea will no longer be a hazard, since there is now but one
91 mode of raising all objections and defenses. If counsel, unaware of procedural
92 changes, ignorantly interposes an obsolete plea or motion, it may be considered as
93 a motion to dismiss.
94 Subdivision (b) was amended, effective March 1, 2016,
provides to provide
95 specific guidance for pretrial motions:
96 Paragraph (b)
(2)(1) provides that any defense or
objection that is capable of
97 determination without trial
of the general issue on the
merits may be raised by
98 motion before trial.
99 Paragraph (b)(2) allows lack of jurisdiction to be raised at any time the case
100 is pending.
101 Paragraph (b)(3) provides that certain motions must be made prior to trial
102 and follows the federal rule in delineating these motions. Paragraph (b)(3) was
103 amended, effective March 1, 2016, to include a list of specific motions that must
104 be made pretrial if the basis for the motion is then reasonably available and the
105 motion can be determined without a trial on the merits.
106 Paragraph (b)(4) follows the federal rule and provides a method for insuring
107 that the defendant knows what evidence the prosecution intends to offer into
108 evidence at trial in order to afford the defendant an opportunity to raise objections
109 to the evidence prior to trial.
Subdivision (c) follows the federal rule and provides that a time for
making of pretrial motions must be fixed at the time of the arraignment or
afterward as practicable.
113 Subdivision (c) was amended, effective March 1, 2016, to govern both the
114 deadline for making pretrial motions and the consequences for failing to meet the
115 deadline. It contains three paragraphs: Paragraph (c)(1) explains how the deadline
116 for pretrial motions is set, Paragraph (c)(2) specifically allows the court discretion
117 to reset motion deadlines, and Paragraph (c)(3) explains the treatment of untimely
119 Subdivision (d) follows the federal rule and was amended, effective January
120 1, 1980, to require the existence of "good cause" to defer ruling on a pretrial
121 motion, with the intent of discouraging the tendency to reserve ruling on pretrial
122 motions. Moreover, the court cannot defer its ruling if to do so will adversely
123 affect a party's right to appeal. This protects certain prosecution appeal rights
124 which could be deprived by a deferred ruling.
Subdivision (e) follows the federal rule and provides that the
shall waive the defenses or objections specified in paragraph (b)(3) if
defenses and objections are not raised at the time set in subdivision (c).
may grant relief from the waiver if adequate cause is shown.
129 Subdivision (e) was deleted, effective March 1, 2016. Paragraph (c)(3)
130 deals with the effect of failure to raise issues in a pretrial motion.
131 Subdivision(f) follows the federal rule except that a verbatim record of the
132 hearing need not be made in municipal court.
133 The omission of the sentence "This rule does not affect any federal statutory
134 period of limitations," from subdivision (g) is made because North Dakota does
135 not have statutes comparable to the federal statutes.
136 Rule 12 does not have a subdivision (h) to correspond to the to the federal
137 rule. Fed.R.Crim.P. (12)(h) was adopted to make the provisions of Fed.R.Crim.P.
138 26.2, Production of Statements of Witnesses, applicable to hearings on a motion to
139 suppress evidence. The effect of the federal rule is that after a witness other than
140 the defendant has testified at a suppression hearing, any statement of that witness
141 in the possession of the party calling the witness shall be available to the other
142 party for examination and use. In North Dakota, under Rule 16, a witness'
143 statements are discoverable at any point in the proceedings, rather than only after a
144 witness has testified.
145 SOURCES: Joint Procedure Committee Minutes of April 23-24, 2015,
146 pages 25-26; January 27-28, 2005, pages 3-6; January 27-28, 1994, pages 9-10;
147 September 23-24, 1993, pages 9-10; April 20, 1989, page 4; December 3, 1987,
148 page 15; June 22, 1984, pages 16-19; February 17-18, 1983, pages 25-32;
149 December 7-8, 1978, pages 3-8; October 12-13, 1978, pages 1-2; May 11-12,
150 1972, pages 7-13; July 25-26, 1968, pages 4-6.
151 STATUTES AFFECTED:
152 SUPERSEDED: N.D.C.C. §§ 29-11-01, 29-11-02, 29-11-13, 29-14-01, 29-
153 14-03, 29-14-04, 29-14-05, 29-14-06, 29-14-07, 29-14-08, 29-14-09, 29-14-10, 29-
154 14-11, 29-14-12, 29-14-13, 29-14-14, 29-14-15, 29-14-25.
155 CROSS REFERENCE: N.D.R.Crim.P. 14 (Relief from Prejudicial Joinder);
156 N.D.R.Crim.P. 16 (Discovery and Inspection); N.D.R.Crim.P. 17.1 (Omnibus
157 Hearing and Pretrial Conference); N.D.R.Crim.P. 47 (Motions).