(a) Probable Cause Finding. If the magistrate finds probable cause to believe an offense has been committed and the defendant committed the offense, an arraignment must be scheduled. The finding of probable cause may be based on hearsay evidence in whole or in part. The defendant may cross-examine adverse witnesses and may introduce evidence. The magistrate may receive evidence that would be inadmissible at the trial.
(b) Discharge of the Defendant. If the magistrate hears evidence on behalf of the respective parties in a preliminary hearing, and finds either a public offense has not been committed or there is not sufficient cause to believe the defendant guilty of the offense, the magistrate must discharge the defendant and dismiss the charge.
(c) Record. A verbatim record of the proceedings in the preliminary hearing must be made. Upon request of either party, a copy of the transcript of the record of proceedings must be furnished to the defendant and to the state. If a transcript is requested by the defendant, the cost of the transcript and related costs must be borne by the state if the magistrate finds the defendant is financially unable to pay for the transcript without undue hardship.
The function of the preliminary hearing is to determine whether there is probable cause to hold the accused for further action.
Subdivision (c) was amended, effective March 1, 2006, to require a verbatim record of preliminary hearing proceedings.
Rule 5.1 was amended, effective January 1, 1995, to conform with the structure of the state judiciary and the elimination of county courts.
Rule 5.1 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 5.1 was amended, effective March 1, 2017, to replace the term "preliminary examination" with "preliminary hearing" throughout the rule.
Subdivision (b) was amended, effective March 1, 2016, to require the magistrate to dismiss the charge if the defendant is discharged.
SOURCES: Joint Procedure Committee Minutes of May 12-13, 2016, page 29; September 24-25, 2015, page 15; January 29-30, 2004, pages 23-24; January 30, 1997, page 12; January 27-28, 1994, pages 5-8; September 23-24, 1993, pages 3-4 and 7-8; April 20, 1989, page 4;December 3, 1987, page 15; March 23-25, 1972, pages 3, 13-15; November 20-21, 1969, pages 8-9, 17-19; May 3-4, 1968, page 2.
SUPERSEDED: N.D.C.C. §§ 29-07-11, 29-07-12, 29-07-15, 29-07-16, 29-07-17, 29-07-18, 29-07-19, 29-07-20, 29-07-21, 29-07-22, 29-07-23, 29-07-24, 29-07-25, 29-07-26, 29-07-27, 29-07-28, 29-07-29, 29-07-30, 29-07-31, 29-07-32.
CONSIDERED: N.D.C.C. §§ 29-07-01.1, 29-07-13, 29-07-14.