RULE 12. PLEADINGS AND PRETRIAL MOTIONS
Effective Date: 3/1/2016
Obsolete Date: 3/1/2022
(a) Pleadings. The pleadings in a criminal proceeding are the indictment, information and complaint in district court, the complaint in municipal court, and the pleas of not guilty and guilty.
(b) Pretrial Motions.
(1) In General. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits. Rule 47 applies to a pretrial motion.
(2) Motions That May Be Made at Any Time. A motion that the court lacks jurisdiction may be made at any time while the case is pending.
(3) Motions That Must Be Made Before Trial. The following defenses, objections and requests must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits:
(A) a defect in instituting the prosecution, including:(i) improper venue;(ii) preindictment delay;(iii) a violation of the right to speedy trial;(iv) selective or vindictive prosecution;(v) an error in the grand-jury proceeding or preliminary hearing;
(B) a defect in the indictment, information, or complaint, including:(i) joining two or more offenses in the same count (duplicity);(ii) charging the same offense in more than one count (multiplicity);(iii) lack of specificity;(iv) improper joinder; and(v) failure to state an offense;
(C) suppression of evidence;
(D) severance of charges or defendants under Rule 14; and
(E) discovery under Rule 16.
(4) Notice of the Prosecution's Intent to Use Evidence.
(A) At the Prosecution's Discretion. At the arraignment or as soon afterward as practicable, the government may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(3)(C).
(B) At the Defendant's Request. At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the prosecution's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16.
(c) Deadline for a Pretrial Motion; Consequences of Not Making a Timely Motion.
(1) Setting the Deadline. The court may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing. If the court does not set one, the deadline is the start of trial.
(2) Extending or Resetting the Deadline. At any time before trial, the court may extend or reset the deadline for pretrial motions.
(3) Consequences or Not Making a Timely Motion Under Rule 12(b)(3). If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause.
(d) Ruling on a Motion. The court must decide every pretrial motion before trial unless it finds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the deferral will adversely affect a party's right to appeal. When factual issues are involved in deciding a motion, the court must state its essential findings on the record.
(f) Recording the Proceedings. Except in municipal courts, a verbatim record must be made of all proceedings at the motion hearing, including any findings of fact and conclusions of law made orally by the court.
(g) Defendant's Continued Custody or Release Status. If the court grants a motion to dismiss based on a defect in instituting the prosecution, in the complaint, in the indictment, or in the information, it may order the defendant to be held in custody or that bail be continued for a specified time until a new indictment, information, or complaint is filed.
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.
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).