RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE
Effective Date: 3/1/2021
(1) Appearance Upon an Arrest. An officer or other person making an arrest must take the arrested person without unnecessary delay before the nearest available magistrate.
(2) Arrest Without a Warrant. If an arrest is made without a warrant, the magistrate must promptly determine whether probable cause exists under Rule 4(a). If probable cause exists to believe that the arrested person has committed a criminal offense, a complaint or information must be filed in the county where the offense was allegedly committed. A copy of the complaint or information must be given within a reasonable time to the arrested person and to any magistrate before whom the arrested person is brought, if other than the magistrate with whom the complaint or information is filed.
(b) Statement by the Magistrate at the Initial Appearance.
(1) In All Cases. The magistrate must inform the defendant of the following:(A) the charge against the defendant and any accompanying declaration;
(B) the defendant's right to remain silent; that any statement made by the defendant may later be used against the defendant;
(C) the defendant's right to the assistance of counsel before making any statement or answering any questions;
(D) the defendant's right to be represented by counsel at each and every stage of the proceedings;
(E) if the offense charged is one for which counsel is required, the defendant's right to have legal services provided at public expense to the extent that the defendant is unable to pay for the defendant's own defense without undue hardship; and
(F) the defendant's right to be admitted to bail under Rule 46.
(2) Felonies. If the defendant is charged with a felony, the magistrate must inform the defendant also of:(A) the defendant's right to a preliminary hearing;(B) the defendant's right to the assistance of counsel at the preliminary hearing;(C) that a defendant who is not a United States citizen may request that an attorney for the state or a law enforcement officer notify a consular officer from the defendant's country of nationality that the defendant has been arrested.
(3) Misdemeanors. If the defendant is charged with a misdemeanor, the magistrate must inform the defendant also of the defendant's right to trial by jury in all cases as provided by law and of the defendant's right to appear and defend in person or by counsel.
(c) Right to Preliminary Hearing.
(1) Waiver.(A) If the offense charged is a felony, the defendant has the right to a preliminary hearing. The defendant may waive the right to preliminary hearing at the initial appearance if assisted by counsel.
(B) If the defendant is assisted by counsel and waives preliminary hearing and the magistrate is a judge of the district court, the defendant may be permitted to plead to the offense charged in the complaint or information at the initial appearance.
(C) If the defendant waives preliminary hearing and does not plead at the initial appearance, an arraignment must be scheduled.
(D) The magistrate must admit the defendant to bail under the provisions of Rule 46.
(2) Non-waiver. If the defendant does not waive preliminary hearing, the defendant may not be called upon to plead to a felony offense at the initial appearance. A magistrate of the county in which the offense was allegedly committed must conduct the preliminary hearing. The magistrate must admit the defendant to bail under the provisions of Rule 46.
(d) Reliable Electronic Means. Contemporaneous audio or audiovisual transmission by reliable electronic means may be used to conduct an appearance under this rule as permitted by N.D. Sup. Ct. Admin. R 52.
(e) Uniform Complaint and Summons.
(1) In General. Notwithstanding Rule 5(a), a uniform complaint and summons may be used in lieu of a complaint and appearance before a magistrate, whether an arrest is made or not, for an offense that occurs in an officer's presence or for a motor vehicle or game and fish offense. An individual held in custody must be brought before a magistrate for an initial appearance without unnecessary delay.
(2) Duty of Prosecuting Attorney. When a uniform complaint and summons is issued for a felony offense, the prosecuting attorney must also subsequently file a complaint or information that complies with Rule 5(a). If the prosecuting attorney after review declines to prosecute a charge that has been filed with the court on a uniform complaint and summons, a dismissal of the charge must be stated on the complaint or information or filed separately with the court.
Rule 5 was amended effective March 1, 1990; January 1, 1995; March 1, 2006; June 1, 2006; March 1, 2010; August 1, 2011; March 1, 2016; March 1, 2017; March 1, 2021.
Rule 5 is derived from Fed.R.Crim.P. 5. Rule 5 is designed to advise the defendant of the charge against the defendant and to inform the defendant of the defendant's rights. This procedure differs from arraignment under Rule 10 in that the defendant is not called upon to plead.
Subdivision (a) provides that an arrested person must be taken before the magistrate "without unnecessary delay." Unnecessary delay in bringing a person before a magistrate is one factor in the totality of circumstances to be considered in determining whether incriminating evidence obtained from the accused was given voluntarily.
Subdivision (a) was amended, effective January 1, 1995, to clarify that a "prompt" judicial determination of probable cause is required in warrantless arrest cases.
Subdivision (b) is designed to carry into effect the holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). Because the Miranda rule is constitutionally based, it applies to all officers whether state or federal. One should note that the protections required by Miranda apply as soon as a person "has been taken into custody or otherwise deprived of his freedom of action in any significant way," while the requirement that an accused be taken before a magistrate is applicable only to an "arrested person." The Miranda decision is based upon the Fifth Amendment privilege against self-incrimination, and holds that no statement obtained by interrogation of a person in custody is admissible, unless, before the interrogation begins, the accused has been effectively warned of the accused's rights, including the right not to answer questions and the right to have counsel present.
Subdivision (b) specifies the action which must be taken by the magistrate. Subparagraphs (b)(1)(A), (b)(1)(B), and (b)(1)(C) are stated by Miranda to be absolute prerequisites to interrogation and cannot be dispensed with on even the strongest showing that the person in custody was aware of those rights.
Paragraph (b)(1) was amended, effective June 1, 2006, to remove a reference to court appointment of counsel for indigents. Courts ceased appointing counsel for indigents on January 1, 2006, when the North Dakota Commission on Legal Counsel for Indigents became responsible for defense of indigents.
Paragraph (b)(2) provides an additional requirement to the instructions given by the magistrate in paragraph (b)(1) when the charge is a felony. It requires the magistrate to inform the defendant of the right to a preliminary hearing. The Sixth Amendment right to counsel applies to a preliminary hearing granted under state law because the preliminary hearing is a critical stage of the state's criminal process.
Paragraph (b)(2) was amended, effective March 1, 2016, to require the defendant in a felony case to be informed at the initial appearance of the right of a defendant who is not a U.S. citizen to request that a consular officer be informed of the defendant's arrest. This amendment was based on the December 1, 2014 amendment to Fed.R.Crim.P. 5.
Subdivisions (b) and (c) were amended, effective March 1, 1990. The amendments track the 1987 amendments to Fed.R.Crim.P. 5, which are technical in nature, and no substantive change is intended.
Subdivision (c) was amended, effective January 1, 1995, in response to elimination of county courts and to ensure that a defendant is not called upon to waive the preliminary hearing or to plead without the assistance of counsel at the initial appearance.
Subdivision (d) was amended, effective March, 1, 2004, to permit the use of interactive television to conduct initial proceedings. Subdivision (d) was amended, effective March 1, 2006, to reference N.D.Sup.Ct.Admin.R. 52, which governs proceedings conducted by interactive television. Subdivision (d) was further amended, March 1, 2016, to allow the use of contemporaneous audio or audiovisual transmission by reliable electronic means to conduct initial proceedings.
Subdivision (e) was added, effective March 1, 2010, to provide a procedure for using the uniform complaint and summons. Statutory provisions governing the uniform complaint and summons, which is commonly referred to as the "uniform citation," are in N.D.C.C. §§ 20.1-02-14.1 and 29-05-31.
Subdivision (e) was amended, effective March 1, 2016, to require the prosecuting attorney to file a written dismissal if the prosecuting attorney decides not to pursue a charge filed with the court on a uniform complaint and summons.
Rule 5 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.
Rule 5 was amended, effective August 1, 2011, to include new language indicating that either "the complaint or information" can be used as a charging document. 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."
Rule 5 was amended, effective March 1, 2017, to replace the term "preliminary examination" with "preliminary hearing" throughout the rule.
Rule 5 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
SOURCES: Joint Procedure Committee Minutes of April 24, 2020, pages 4-5; May 12-13, 2016, page 29; September 24-25, 2015, page 15; April 23-24, 2015, pages 14-15; April 28-29, 2011, pages 17-18; May 21-22, 2009, pages 2-10; April 27-28, 2006, pages 2-5, 15-17; January 29-30, 2004, pages 22-23; September 26-27, 2002, pages 12-13; January 27-28, 1994, pages 3-5; September 23-24, 1993, pages 4-7; April 20, 1989, page 4; December 3, 1987, page 15;February 22-23, 1973, page 18; March 23-24, 1972, pages 2-3, 11-12; January 27, 1972, pages 17-22; November 21-22, 1969, pages 2, 8-9, 17-19; May 3-4, 1968, pages 1-2; January 26-27, 1968, pages 7-9.
SUPERSEDED: N.D.C.C. §§ 29-05-04, 9-05-11, 29-05-17, 29-05-19, 29-07-01, 29-07-02, 29-07-04, 29-07-05, 29-07-07, 29-07-08, 29-07-09, 29-07-10, 33-12-07, 33-12-09.
CONSIDERED: N.D.C.C. ch. 31-15, §§ 20.1-02-14.1, 29-04-05, 29-05-31, 29-07-03, 29-07-06, 40-18-15, 40-18-16, 40-18-18.
CROSS REFERENCES: N.D.R.Crim.P. 5.1 (Preliminary Hearing); N.D.R.Crim.P. 10 (Arraignment); N.D.R.Crim.P. 35 (Correcting or Reducing a Sentence); N.D.R.Crim.P. 43 (Defendant's Presence); N.D.R.Crim.P. 44 (Right to and Assignment of Counsel); N.D.Sup.Ct.Admin.R. 52 (Contemporaneous Transmission by Reliable Electronic Means).