RULE 12. PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS
Effective Date: 1/1/1995
Obsolete Date: 3/1/2006
(a) Pleadings and Motions. Pleadings in criminal proceedings are the indictment, information and complaint in district court, the complaint in municipal court, and the pleas of not guilty and guilty. All other pleas, demurrers and motions to quash are abolished. Defenses and objections raised before trial must be raised only by motion to dismiss or to grant appropriate relief, as provided in these Rules. Motion to suppress must be made after entry of a plea.
(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution;
(2) Defenses and objections based on defects in the indictment, information, or complaint other than that it fails to show jurisdiction in the court or to charge an offense, which objections must be noticed by the court at any time during the pendency of the proceeding;
(3) Motions to suppress evidence on the ground that it was illegally obtained;
(4) Requests for discovery under Rule 16; or
(5) Requests for a severance of charges or defendants under Rule 14.
(c) Motion Date. At the time of the arraignment or as soon thereafter as practicable, the court may set a time for making pretrial motions and, if required, a later date for hearing.
(d) Notice by the Prosecution of the Intention to Use Evidence.
(1) At the Discretion of the Prosecution. At the arraignment, or as soon thereafter as is practicable, the prosecution may give notice to the defendant of its intention to use specified evidence at trial in order to afford the defendant an opportunity to raise objections to that evidence prior to trial under Subsection (b)(3).
(2) At the Request of the Defendant. At the arraignment or as soon thereafter as is practicable, the defendant, in order to afford an opportunity to raise objections to evidence prior to trial under Subsection (b)(3), may request notice of the prosecution's intention to use in its evidence in chief at trial any evidence to which the defendant is entitled to discovery under Rule 16 subject to any relevant limitations prescribed in Rule 16.
(e) Ruling on Motion. A motion before trial shall be determined before trial unless the court, upon a finding of good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no determination may be deferred if a party's right to appeal is adversely affected. If factual issues are involved in determining a motion, the court shall state its essential findings on the record.
(f) Effect of Failure to Raise Defenses or Objections. Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to Subdivision (c), or prior to any extension thereof made by the court, shall constitute a waiver thereof, but the court for cause shown may grant relief from the waiver.
(g) Records. Except in municipal courts, a verbatim record shall be made of all proceedings at the hearing, including any findings of fact and conclusions of law made orally.
(h) Effect of Determination. If the court grants a motion based on a defect in the institution of the prosecution or in the complaint, indictment, or information, it may also order that the defendant be held in custody or that bail be continued for a specified time pending the filing of a new indictment, information, or complaint.
Rule 12 was amended, effective January 1, 1980; September 1, 1983; January 1, 1995; March 1, 2006; March 1, 2016. The explanatory note was amended, effective March 1, 2022.
Rule 12 is similar to Fed.R.Crim.P. 12 with modifications to conform to practice in North Dakota.
Rule 12 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (a) was amended, effective September 1, 1983, to delete obsolete references to the county court with increased jurisdiction and the county justice court. Subdivision (a) was further amended, effective January 1, 1995, in response to county court elimination. The amendment provides for use of the complaint in district court.
All objections or defenses raised before trial must be made by a motion to dismiss or by motion to grant appropriate relief as provided in these rules. Selection of a wrong plea will no longer be a hazard, since there is now but one mode of raising all objections and defenses. If counsel, unaware of procedural changes, ignorantly interposes an obsolete plea or motion, it may be considered as a motion to dismiss.
Subdivision (b) was amended, effective March 1, 2016, to provide specific guidance for pretrial motions:
Paragraph (b)(1) provides that any defense or objection that is capable of determination without trial on the merits may be raised by motion before trial.
Paragraph (b)(2) allows lack of jurisdiction to be raised at any time the case is pending.
Paragraph (b)(3) provides that certain motions must be made prior to trial and follows the federal rule in delineating these motions. Paragraph (b)(3) was amended, effective March 1, 2016, to include a list of specific motions that must be made pretrial if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.
Paragraph (b)(4) follows the federal rule and provides a method for insuring that the defendant knows what evidence the prosecution intends to offer into evidence at trial in order to afford the defendant an opportunity to raise objections to the evidence prior to trial.
Subdivision (c) was amended, effective March 1, 2016, to govern both the deadline for making pretrial motions and the consequences for failing to meet the deadline. It contains three paragraphs: Paragraph (c)(1) explains how the deadline for pretrial motions is set, Paragraph (c)(2) specifically allows the court discretion to reset motion deadlines, and Paragraph (c)(3) explains the treatment of untimely motions.
Subdivision (d) follows the federal rule and was amended, effective January 1, 1980, to require the existence of "good cause" to defer ruling on a pretrial motion, with the intent of discouraging the tendency to reserve ruling on pretrial motions. Moreover, the court cannot defer its ruling if to do so will adversely affect a party's right to appeal. This protects certain prosecution appeal rights which could be deprived by a deferred ruling.
Subdivision (e) was deleted, effective March 1, 2016. Paragraph (c)(3) deals with the effect of failure to raise issues in a pretrial motion.
Subdivision(f) follows the federal rule except that a verbatim record of the hearing need not be made in municipal court.
The omission of the sentence "This rule does not affect any federal statutory period of limitations," from subdivision (g) is made because North Dakota does not have statutes comparable to the federal statutes.
Rule 12 does not have a subdivision (h) to correspond to the to the federal rule. Fed.R.Crim.P. (12)(h) was adopted to make the provisions of Fed.R.Crim.P. 26.2, Production of Statements of Witnesses, applicable to hearings on a motion to suppress evidence. The effect of the federal rule is that after a witness other than the defendant has testified at a suppression hearing, any statement of that witness in the possession of the party calling the witness shall be available to the other party for examination and use. In North Dakota, under Rule 16, a witness' statements are discoverable at any point in the proceedings, rather than only after a witness has testified.
SOURCES: Joint Procedure Committee Minutes of April 29, 2021, pages 8-9; April 23-24, 2015, pages 25-26; January 27-28, 2005, pages 3-6; January 27-28, 1994, pages 9-10; September 23-24, 1993, pages 9-10; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, pages 16-19; February 17-18, 1983, pages 25-32; December 7-8, 1978, pages 3-8; October 12-13, 1978, pages 1-2; May 11-12, 1972, pages 7-13; July 25-26, 1968, pages 4-6.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. §§ 29-11-01, 29-11-02, 29-11-13, 29-14-01, 29-14-03, 29-14-04, 29-14-05, 29-14-06, 29-14-07, 29-14-08, 29-14-09, 29-14-10, 29-14-11, 29-14-12, 29-14-13, 29-14-14, 29-14-15, 29-14-25, 29-16-01, 29-21-16, 29-22-33.
CROSS REFERENCE: N.D.R.Crim.P. 14 (Relief from Prejudicial Joinder); N.D.R.Crim.P. 16 (Discovery and Inspection); N.D.R.Crim.P. 17.1 (Omnibus Hearing and Pretrial Conference); N.D.R.Crim.P. 47 (Motions).