CHANGES TO RULES
OF CRIMINAL PROCEDURE
TO TAKE EFFECT MARCH 1
MIKE HAGBURG
Attorney at Law
The North Dakota Supreme Court has
approved an assortment of amendments
to the Rules of Criminal Procedure. These
amendments will take effect March 1, 2016.
Rule 12 on pleadings and pretrial motions
has been overhauled based on the 2014
amendments to the federal rule. Rule 12 (b)
was amended to provide specific guidance
for pretrial motions. Paragraph (b) (2) now
allows a motion claiming that the court lacks
jurisdiction to be raised at any time. On the
other hand, paragraph (b) (3) now requires
specific listed motions to be made before
trial if the basis for the motion is reasonably
available and the motion can be determined
without a trial on the merits.
Rule 12 (c) was amended to provide
deadlines for making pretrial motions and to
spell out the consequences of failing to meet
motion deadlines. Paragraph (c)(1) explains
how deadlines for pretrial motions are set,
paragraph (c)(2) allows the court discretion
to reset deadlines, and paragraph (c)(3)
explains how untimely motions are to be
disposed of.
Rule 34 on arresting judgment was amended
in parallel with Rule 12 to recognize only
one ground for a motion to arrest judgment:
that the court is without jurisdiction of
the offense charged. A motion to arrest
judgment is a motion that may be made
after the verdict or guilty plea was entered.
Rule 34 previously allowed a claim that the
indictment, information, or complaint did
not charge an offense to be made as part of a
motion to arrest judgment.
Several other criminal rules were changed
consistent with recent amendments to
the federal rules. A new provision was
added to Rule 11 on pleas that requires the
court, before it accepts a plea of guilty, to
advise a defendant that a conviction may
cause immigration consequences. The new
language mandates a generic warning, not
specific advice concerning the defendant’s
individual situation. Rule 15, the criminal
deposition rule, gained a new section that
allows a deposition to be taken outside
the United States without the defendant’s
presence under certain limited and specified
circumstances.
In an another amendment based on a
federal change, Rule 5, which governs the
initial appearance before the magistrate,
was amended to require information to be
provided at an initial appearance in a felony
case that a defendant who is not a U.S.
citizen has a right to request that a consular
officer be informed of the defendant’s arrest.
In further amendments to Rule 5,
subdivision (e) now requires filing of a
written dismissal if the prosecuting attorney
decides not to pursue a charge initially
brought before the court as part of a uniform
complaint and summons. Rule 3 on the
complaint was similarly amended to require
a dismissal to be stated on the amended
complaint if the prosecuting attorney
chooses not to pursue charges raised in the
initial complaint. Likewise, Rule 7 on the
indictment and information was amended
to require a dismissal to be stated on the
amended information if the prosecuting
attorney chooses not to pursue charges raised
initially.
The preliminary examination rule, Rule 5.1,
was amended to require the magistrate to
formally dismiss the charge if the defendant
is discharged because no public offense has
been committed or there is not sufficient
cause to believe the defendant guilty.
Both Rule 5 on the initial appearance and
Rule 10 on the arraignment were amended
to allow the use of contemporaneous audio
or audiovisual transmission by reliable
electronic means to conduct proceedings.
In amendments reflecting the shift within
the court system to electronic records
management, Rule 20, which governs
transfers from the county for plea and
sentence, was changed to require the
electronic transfer of case files. Meanwhile,
Rule 21, which sets procedure when there
is a transfer from the county for trial, was
amended to delete requirements that files
and records be transferred when the trial is
held in another county.
WINTER 2016
23