RULE 7. THE INDICTMENT AND THE INFORMATION
(a) When Used.
(1) Felony. All felony prosecutions in the district court must be by indictment after grand jury inquiry or by information.
(2) Misdemeanor. 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.
(1) In General. 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 elements of the offense charged. It must be signed by the prosecuting attorney. Except for appeals from municipal court and municipal ordinance cases transferred under N.D.C.C. § 40-18-06.2, all prosecutions 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. A count may incorporate by reference an allegation made in another count. A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specific means. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated.
(2) Citation Error. Unless the defendant was prejudicially misled, neither an error in the citation nor its omission is a ground to dismiss the indictment or information or to reverse a conviction.
(d) Surplusage. On motion of either party or on its own motion, the court may strike surplusage from the information or indictment.
(e) Amending an Information. Unless an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit an information to be amended at any time before the verdict or finding. If the prosecuting attorney chooses not to pursue a charge contained in the initial information, a dismissal of that charge must be stated in the amended information.
(f) Bill of Particulars. The court may direct the filing of a bill of particulars. The defendant may move for a bill of particulars before arraignment or within one day after arraignment or at a later time if the court permits. The motion must be in writing and must specify the particulars sought by the defendant. A bill of particulars must be granted if the court finds it necessary to protect the defendant against a second prosecution for the same offense or to enable the defendant to adequately prepare for trial. 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 on it before it is presented. The prosecuting attorney, at a time the court prescribes by rule or otherwise, must endorse on the indictment or information the names of other witnesses the prosecuting attorney proposes to call. A failure 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 must direct the names of those witnesses to be endorsed on application of the defendant. The court may not allow a continuance 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 name 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.
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).