N.D. R. Crim. P. 3

As amended through March 18, 2024

Rule 3 - The Complaint

(a) General. The complaint is a written statement of the essential facts constituting the elements of the offense charged. The complaint must be sworn to and subscribed before an officer authorized by law to administer oaths within this state, or must contain a written declaration that it is made and subscribed under penalty of perjury, and be presented to a magistrate. The complaint may be presented as provided in Rule 4.1.

(b) Magistrate Review. The magistrate may examine on oath the complainant and other witnesses and receive any affidavit filed with the complaint. If the magistrate examines the complainant or other witnesses on oath, the magistrate shall cause their statements to be reduced to writing and subscribed by the persons making them or to be recorded.

(c) Amendment. The magistrate may permit a complaint to be amended at any time before a finding or verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. If the prosecuting attorney chooses not to pursue a charge contained in the initial complaint, a written dismissal of that charge must be filed with the amended complaint.

N.D. R. Crim. P. 3

Joint Procedure Committee Minutes of April 26, 2019, pages 8-10; September 24-25, 2015, pages 14-15, 29; January 26-27, 2012, page 25; April 28-29, 2011, pages 17-18; April 24-25, 2003, pages 25-26; January 26-27, 1995, pages 3-5; April 28-29, 1994, pages 20-22; January 27-29, 1972, pages 4-7 September 27-28, 1968, pages 1-2; November 17-18, 1967, page 2.

EXPLANATORY NOTE

Rule 3 was amended, effective 1/1/1995;3/1/1996;3/1/2006;3/1/2007;8/1/2011;3/1/2013;3/1/2016; amended by Order dated December 22, 2016 effective 3/1/2017; amended by Order September 4, 2019 effective 9/15/2019.

Subdivision (a) was amended, effective 1/1/1995, to allow a complaint to be subscribed and sworn to outside the presence of a magistrate. An effect of this amendment is to allow facsimile transmission of the complaint. For a listing of officers authorized to administer oaths, see N.D.C.C. § 44-05-01. The amendment does not preclude a magistrate from examining a complainant or other witnesses under oath when making the probable cause determination. Subdivision (a) was amended, effective3/1/1996, to clarify that the complaint is the initial document for charging a person with a misdemeanor or felony.

Subdivision (a) was amended, effective3/1/2007, to specify that the complaint must contain a statement of the facts that establish the elements of the offense charged.

Subdivision (a) was amended, effective8/1/2011, to eliminate language about the complaint being the initial charging document for all criminal offenses. 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 (a) was amended, effective3/1/2013, to allow the complaint to be presented to the magistrate by telephone or other reliable electronic means under Rule 4.1.

Subdivision (a) was amended, 3/1/2017, to allow a licensed peace officer to make a complaint in a written declaration that it is made and subscribed under penalty of perjury. This amendment facilitates submission of electronic documents to establish the grounds for a complaint. Any electronic signature on a document submitted under this rule by a licensed peace officer is considered to be that of the officer.

Subdivision (a) was amended, effective 9/15/2019, to remove language limiting the use of unsworn declarations to peace officers. N.D.C.C. ch. 31-15 allows anyone to make an unsworn declaration that has the same effect as a sworn declaration. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.

Subdivision (c) is similar to Rule 7(e).

Subdivision (c) was amended, effective 3/1/2016, to require a written dismissal to be stated on the amended complaint if the prosecuting attorney chooses not to pursue charges raised in the initial complaint.

Rule 3 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 w ere changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. §§ 29-01-13(1), 29-05-01 to the extent that it requires a complaint to be sworn,29-05-02 to the extent that it requires a complaint to be subscribed and sworn to before a magistrate, 29-05-03, 33-12-03, 33-12-04, 33-12-05, 33-12-16, 33-12-25.

CONSIDERED: N.D.C.C. ch. 31-15, §§ 29-04-05, 12-01-04(12), 29-01-14, 29-02-06, 29-02-07, 29-04-05, 29-05-01. 29-05-05.

N.D.R.Crim.P. 4.1 (Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means); N.D.R.Crim.P. 7 (The Indictment and the Information).