RULE 3. THE COMPLAINT

Effective Date: 3/1/2017

(a) General. The complaint is a written statement of the essential facts constituting the elements of the offense charged. The complaint must be sworn to and subscribed before an officer authorized by law to administer oaths within this state, or if made by a licensed peace officer, must contain a written declaration that it is made and subscribed under penalty of perjury, and be presented to a magistrate. The complaint may be presented as provided in Rule 4.1.

(b) Magistrate Review. The magistrate may examine on oath the complainant and other witnesses and receive any affidavit filed with the complaint. If the magistrate examines the complainant or other witnesses on oath, the magistrate shall cause their statements to be reduced to writing and subscribed by the persons making them or to be recorded.

(c) Amendment. The magistrate may permit a complaint to be amended at any time before a finding or verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. If the prosecuting attorney chooses not to pursue a charge contained in the initial complaint, a dismissal of that charge must be stated on the amended complaint.

Rule 3 was amended, effective January 1, 1995; March 1, 1996; March 1, 2006; March 1, 2007; August 1, 2011; March 1, 2013; March 1, 2016; March 1, 2017.

Subdivision (a) was amended, effective January 1, 1995, to allow a complaint to be subscribed and sworn to outside the presence of a magistrate. An effect of this amendment is to allow facsimile transmission of the complaint. For a listing of officers authorized to administer oaths, see N.D.C.C. § 44-05-01. The amendment does not preclude a magistrate from examining a complainant or other witnesses under oath when making the probable cause determination.

Subdivision (a) was amended, effective March 1, 1996, to clarify that the complaint is the initial document for charging a person with a misdemeanor or felony.

Subdivision (a) was amended, effective March 1, 2007, to specify that the complaint must contain a statement of the facts that establish the elements of the offense charged.

Subdivision (a) was amended, effective August 1, 2011, to eliminate language about the complaint being the initial charging document for all criminal offenses. N.D.C.C. § 29-04-05 was amended in 2011 to specify that ?A prosecution is commenced when a uniform complaint and summons, a complaint, or an information is filed or when a grand jury indictment is returned.?

Subdivision (a) was amended, effective March 1, 2013, to allow the complaint to be presented to the magistrate by telephone or other reliable electronic means under Rule 4.1.

Subdivision (a) was amended, March 1, 2017, to allow a licensed peace officer to make a complaint in a written declaration that it is made and subscribed under penalty of perjury. This amendment facilitates submission of electronic documents to establish the grounds for a complaint. Any electronic signature on a document submitted under this rule by a licensed peace officer is considered to be that of the officer.

Subdivision (c) is similar to Rule 7(e).

Subdivision (c) was amended, effective March 1, 2016, to require a written dismissal to be stated on the amended complaint if the prosecuting attorney chooses not to pursue charges raised in the initial complaint.

Rule 3 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.

SOURCES: Joint Procedure Committee Minutes of September 24-25, 2015, pages 14-15, 29;January 26-27, 2012, page 25; April 28-29, 2011, pages 17-18; April 24-25, 2003, pages 25-26; January 26-27, 1995, pages 3-5; April 28-29, 1994, pages 20-22; January 27-29, 1972, pages 4-7 September 27-28, 1968, pages 1-2; November 17-18, 1967, page 2.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. §§ 29-01-13(1), 29-05-01 to the extent that it requires a complaint to be sworn, 29-05-02 to the extent that it requires a complaint to be subscribed and sworn to before a magistrate, 29-05-03, 33-12-03, 33-12-04, 33-12-05, 33-12-16, 33-12-25.

CONSIDERED: N.D.C.C. §§ 29-04-05, 12-01-04(12), 29-01-14, 29-02-06, 29-02-07, 29-04-05, 29-05-01, 29-05-05.

CROSS REFERENCE: N.D.R.Crim.P. 4.1 (Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means); N.D.R.Crim.P. 7 (The Indictment and the Information).

Effective Date Obsolete Date
03/01/2017 View
03/01/2016 03/01/2017 View
03/01/2013 03/01/2016 View
08/01/2011 03/01/2013 View
03/01/2007 08/01/2011 View
03/01/2006 03/01/2007 View
01/01/1995 03/01/2006 View