(a) Joinder of Offenses. The indictment, information, or complaint may charge a defendant in separate counts with two or more offenses if the offenses charged—whether felonies, misdemeanors or infractions—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.
(b) Joinder of Defendants. The indictment, information, or complaint may charge two or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions constituting one or more offenses. The defendants may be charged in one or more counts together or separately. All of the defendants need not be charged in each count.
Rule 8 was amended, effective March 1, 2006.
Rule 8 follows Fed.R.Crim.P. 8 in substance and controls with respect to all actions involving the joinder of offenses or defendants arising in this state. This rule should be read in conjunction with Rules 13 and 14 since the same underlying principles apply in each. They are designed to promote economy and efficiency and avoid multiplicity of trials in those situations in which these objectives can be reached without substantial prejudice to the rights of the defendants. The unifying theme in this rule is trial convenience, even though trial convenience in criminal procedure is not a goal upon which all parties can uniformly agree.
Subdivision (a) has been modified slightly from its federal counterpart to allow joinder of offenses in the complaint as well as the indictment and information. The test for determining the identity of offenses charged in two or more indictments or in two or more counts in a single indictment is whether the same evidence is required to establish several indictments or several counts. If each indictment or count requires proof of a fact or element not required by the others, then the charges are separate.
Subdivision (b) includes the complaint as a charging document together with the indictment and information upon which joinder of defendants is permitted. The test prescribed for joinder of defendants as well as joinder of offenses is whether each of such offenses or defendants is linked together by their participation in the common transaction or act.
Rule 8 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 January 29-30, 2004, pages 25-26; March 23-25, 1972, pages 15-16; May 15-16, 1969, page 13; May 3-4, 1968, pages 5-6; Fed.R.Crim.P. 8.
SUPERSEDED: N.D.C.C. §§ 29-11-10.1, 29-11-49, 29-11-51.
CROSS REFERENCES: N.D.R.Crim.P. 13 (Joint Trial of Separate Cases); N.D.R.Crim.P. 14 (Relief from Prejudicial Joinder).