Obsolete Date: 3/1/2006
(a) Use of Indictment or Information. All felony prosecutions in the district court must be by indictment after grand jury inquiry or information after preliminary examination. All misdemeanor and other prosecutions in the district court, including appeals, must be by indictment, information or complaint.
(b) Waiver of Indictment. [intentionally omitted].
(c) Nature and Contents. The indictment or the information must name or otherwise identify the defendant, and must be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It must be signed by the prosecuting attorney. All prosecutions except appeals from municipal courts must be carried on in the name and by the authority of the State of North Dakota and must conclude "against the peace and dignity of the State of North Dakota". Except as required by this Rule, the indictment or information need not contain a formal commencement, a formal conclusion, or any other matter not necessary to the statement.Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specific means. The indictment or information must state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission is not ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant.
(d) Surplusage. Unnecessary allegations may be disregarded as surplusage and the court, on motion of either party or upon its own motion, may strike surplusage from the information or indictment.
(e) Amendment of Information. The court may permit an information to be amended at any time before verdict or finding, if no additional or different offense is charged and substantial rights of the defendant are not prejudiced.
(f) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within one day after arraignment or at such later time as the court may permit. A bill of particulars should be granted if it appears to the court necessary to protect the defendant against a second prosecution for the same offense or to enable the defendant to adequately prepare for trial. The motion must be in writing and must specify the particulars sought by the defendant. A bill of particulars may be amended at any time subject to such conditions as justice requires.
(g) Names of Witnesses to Be Endorsed on Indictment or Information.When an indictment or information is filed, the names of all the witnesses on whose evidence the indictment or information was based must be endorsed thereon before it is presented, and the prosecuting attorney shall endorse on the indictment or information, at such time as the court by rule or otherwise may prescribe, the names of other witnesses the prosecuting attorney proposes to call.A failure so to endorse those names does not affect the validity or sufficiency of the indictment or information, but the court in which the indictment or information was filed, upon application of the defendant, shall direct the names of those witnesses to be endorsed. No continuance may be allowed because of the failure to endorse any of those names unless the application was made at the earliest opportunity and then only if a continuance is necessary in the interests of justice.
Rule 7 was amended effective March 1, 1990; January 1, 1995; March 1, 1996; March 1, 2006; March 1, 2007; August 1, 2011; March 1, 2013; March 1, 2016. The explanatory note was amended effective March 1, 2017.
Rule 7 is an adaptation of Fed.R.Crim.P. 7 and controls all indictments and informations. Although North Dakota provides that a defendant may be prosecuted by indictment or information, indictments are seldom used.
Subdivision (a) was amended, effective January 1, 1995, in response to county court elimination. The amendment allows misdemeanors to be charged by complaint in district court, and for the inclusion of misdemeanor charges with felony charges in an indictment or information.
Subdivision (a) was amended, effective March 1, 1996, to clarify that even though a felony is initially charged by complaint, the subsequent prosecution must be by indictment or information.
Subdivision (a) was amended, effective August 1, 2011, to delete language indicating that a preliminary hearing was required before commencing a prosecution on an information. 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 (b) entitled "Waiver of Indictment" is retained in title and number only to conform with the outline and form of Fed.R.Crim.P. 7. Article I, Section 10 of the North Dakota Constitution provides that an individual must be prosecuted by indictment in cases of felony unless otherwise provided by the legislature, but in all cases either by information or indictment. Since the legislature has provided the state with an alternative to a prosecution by indictment in N.D.C.C. § 29-09-02, it follows that under the state constitution, there is no right in the accused to demand prosecution by indictment.
The language of subdivision (c), "must be carried on in the name * * * of the State of North Dakota," does not mandate a change in the style of prosecution before municipal courts. The purpose of the indictment or information is to inform the defendant of the precise offense of which the defendant is accused so that the defendant may prepare the defendant's defense and further that a judgment will safeguard the defendant from subsequent prosecution for the same offense. The language employed in subdivision (c) is intended to provide the defendant with the Sixth Amendment protection to "be informed of the nature and the cause of the accusation * * * ." With this view in mind, subdivision (c) is established for the benefit of the defendant and is intended simply to provide a means by which the defendant can be properly informed of the proceedings without jeopardy to the prosecution.
Subdivisions (c) and (g) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Subdivision (c) was amended, effective March 1, 2007, to specify that the indictment or information must contain a statement of the facts that establish the elements of the offense charged.
Subdivision (c) was amended, effective March 1, 2013, to clarify that municipal ordinance cases transferred to district court under N.D.C.C. § 40-18-06.2 are not prosecuted in the name of the State. When a municipal court case is appealed to district court, Rule 37 governs procedure.
The purpose of subdivision (d) is to protect the defendant against prejudicial allegations of irrelevant or immaterial facts.
Subdivision (e) was amended, effective March 1, 2016, to require a dismissal to be stated in the amended information if the prosecuting attorney chooses not to pursue charges raised in the initial information.
Rule 7 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 May 12-13, 2016, page 29; September 30, 2011, pages 18-19; April 28-29, 2011, pages 17-18; January 26, 2006, page 3;January 29-30, 2004, pages 24-25; January 26-27, 1995, pages 3-5; January 27-28, 1994, pages 8-9; September 23-24, 1993, pages 8-10; April 20, 1989, page 4; December 3, 1987, page 15; March 23-25, 1972, pages 3-11; December 11-12, 1968, pages 1-2; July 25-26, 1968, pages 1-4.
SUPERSEDED: N.D.C.C. §§ 29-09-01, 29-09-03, 29-09-04, 29-09-05, Chapter 29-11.
CONSIDERED: N.D.C.C. §§ 29-09-02, 29-09-06, 29-09-07; 40-18-06.2.
CROSS REFERENCES: N.D.C.C. ch. 29-10.1 (Grand Jury); N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken).