RULE 5.1 PRELIMINARY EXAMINATION
Effective Date: 3/1/1998
Obsolete Date: 3/1/2006
(a) Probable cause finding. If it appears from the evidence there is 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 upon 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. After hearing the evidence on behalf of the respective parties, in a preliminary examination, if it appears either a public offense has not been committed, or there is not sufficient cause to believe the defendant guilty of the offense, the magistrate shall order the defendant to be discharged.
(c) Record. A verbatim record of the proceedings in the preliminary hearing must be made under the direction of the magistrate if a request for a record is made by either the State or the defendant. 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.
Rule 5.1 was amended, effective February 12, 1982 on an emergency basis; May 20, 1982, March 1, 1990; January 1, 1995; March 1, 1998; March 1, 2006; March 1, 2016; March 1, 2017.
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.
STATUTES AFFECTED:
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.
CROSS REFERENCES: N.D.R.Crim.P. 5 (Initial Appearance Before the Magistrate); N.D.R.Crim.P. 10 (Arraignment); N.D.R.Crim.P. 12 (Pleadings and Motions Before Trial; Defenses and Objections).