N.D. R. Crim. P. 12
Joint Procedure Committee Minutes of April 29, 2021, pages___; January 27-28, 2005, pages 3-6; January 27-28, 1994, pages 9-10; September 23-24, 1993, pages 9-10; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, pages 16-19; February 17-18, 1983, pages 25-32; December 7-8, 1978, pages 3-8; October 12-13, 1978, pages 1-2; May 11-12, 1972, pages 7-13; July 25-26, 1968, pages 4-6.
EXPLANATORY NOTE
Rule 12 was amended, effective 1/1/1980;9/1/1983;1/1/1995;3/1/2006;3/1/2016. The explanatory note was amended, effective 3/1/2022.
Rule 12 is similar to Fed.R.Crim.P. 12 with modifications to conform to practice in North Dakota.
Rule 12 was amended, effective3/1/2006, in response to the12/1/2002, 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.
Subdivision (a) was amended, effective9/1/1983, to delete obsolete references to the county court with increased jurisdiction and the county justice court.
Subdivision (a) was further amended, effective1/1/1995, in response to county court elimination. The amendment provides for use of the complaint in district court.
All objections or defenses raised before trial must be made by a motion to dismiss or by motion to grant appropriate relief as provided in these rules. Selection of a wrong plea will no longer be a hazard, since there is now but one mode of raising all objections and defenses. If counsel, unaware of procedural changes, ignorantly interposes an obsolete plea or motion, it may be considered as a motion to dismiss.
Subdivision (b) was amended, effective 3/1/2016, to provide specific guidance for pretrial motions:
Paragraph (b)(1) provides that any defense or objection that is capable of determination without trial on the merits may be raised by motion before trial.
Paragraph (b)(2) allows lack of jurisdiction to be raised at any time the case is pending.
Paragraph (b)(3) provides that certain motions must be made prior to trial and follows the federal rule in delineating these motions. Paragraph (b)(3) was amended, effective 3/1/2016, to include a list of specific motions that must be made pretrial if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.
Paragraph (b)(4) follows the federal rule and provides a method for insuring that the defendant knows what evidence the prosecution intends to offer into evidence at trial in order to afford the defendant an opportunity to raise objections to the evidence prior to trial.
Subdivision (c) was amended, effective 3/1/2016, to govern both the deadline for making pretrial motions and the consequences for failing to meet the deadline. It contains three paragraphs: Paragraph (c)(1) explains how the deadline for pretrial motions is set, Paragraph (c)(2) specifically allows the court discretion to reset motion deadlines, and Paragraph (c)(3) explains the treatment of untimely motions.
Subdivision (d) follows the federal rule and was amended, effective 1/1/1980, to require the existence of "good cause" to defer ruling on a pretrial motion, with the intent of discouraging the tendency to reserve ruling on pretrial motions. Moreover, the court cannot defer its ruling if to do so will adversely affect a party's right to appeal. This protects certain prosecution appeal rights which could be deprived by a deferred ruling.
Subdivision (e) follows the federal rule and provides that the defendant shall waive the defenses or objections specified in paragraph (b)(3) if those defenses and objections are not raised at the time set in subdivision (c). The court may grant relief from the waiver if adequate cause is shown.
Subdivision(f) follows the federal rule except that a verbatim record of the hearing need not be made in municipal court.
The omission of the sentence "This rule does not affect any federal statutory period of limitations," from subdivision (g) is made because North Dakota does not have statutes comparable to the federal statutes.
Rule 12 does not have a subdivision (h) to correspond to the to the federal rule. Fed.R.Crim.P. (12)(h) was adopted to make the provisions of Fed.R.Crim.P. 26.2, Production of Statements of Witnesses, applicable to hearings on a motion to suppress evidence. The effect of the federal rule is that after a witness other than the defendant has testified at a suppression hearing, any statement of that witness in the possession of the party calling the witness shall be available to the other party for examination and use. In North Dakota, under Rule 16, a witness' statements are discoverable at any point in the proceedings, rather than only after a witness has testified.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. §§ 29-11-01, 29-11-02, 29-11-13, 29-14-01, 29-14-03, 29-14-04, 29-14-05, 29-14-06, 29-14-07, 29-14-08, 29-14-09, 29-14-10, 29-14-11, 29-14-12, 29-14-13, 29-14-14, 29-14-15, 29-14-25, 29-16-01, 29-21-16, 29-22-33.
N.D.R.Crim.P. 14 (Relief from Prejudicial Joinder); N.D.R.Crim.P. 16 (Discovery and Inspection); N.D.R.Crim.P. 17.1 (Omnibus Hearing and Pretrial Conference); N.D.R.Crim.P. 47 (Motions).