TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 3. Criminal Information and Indictment; Probable Cause Hearing
Commencement of Criminal Proceeding. A criminal proceeding shall be commenced in the Superior Court by a criminal information or by an indictment. The accusatory instrument shall be filed as provided by Rule 3.2. A criminal proceeding is commenced when the first accusatory instrument in the matter is filed; where more than one accusatory instrument is filed in the course of the proceeding, the proceeding commences upon the filing of the first.
Right to Indictment.
Treason. A defendant accused of treason or of misprision of treason shall have the right to be charged by grand jury indictment, as guaranteed by Const. art. I § 7.
Other Offenses. In every other case the State may proceed by criminal information, and the prosecuting attorney may in any case elect instead to seek an indictment. Neither the Constitution nor the state statutes confer a right to be proceeded against by indictment upon a charge other than treason or misprision of treason.
Waiver of Indictment.
Right to Waive Indictment. A defendant charged in the Superior Court with an offense as to which the defendant has the right to be proceeded against by indictment shall have the right to waive indictment, unless the State proceeds by indictment pursuant to subdivision (5) of this rule.
Procedure for Waiving Indictment. The defendant may waive the right to be proceeded against by indictment by filing a written waiver of that right in the Superior Court, with the consent of the prosecutor. The waiver shall be executed by the defendant personally, shall state that the defendant has been advised of the nature of the charge and of the right waived, and shall be tendered in open court or in the proceeding communications after the court has satisfied itself on the record that the waiver is knowing, intelligent, and voluntary. No waiver shall be accepted from a defendant who is not represented by counsel and who has not waived counsel under Rule 8.1.
Relief from Waiver. The Superior Court may for cause shown grant relief from a waiver of indictment.
Transmission of Papers. If the charges are bound over for trial after a finding of probable cause at a preliminary hearing under Rule 7.2, if the defendant waives a preliminary hearing under Rule 7.2(9), or if the court determines under Rule 7(2)(e) not to permit a preliminary hearing, the clerk of the Superior Court shall cause the following to be entered upon the docket of the matter: a copy of the information and of the record; the original recognizances; a list of the witnesses; a statement of the expenses and the appearance of the attorney for the defendant, if any is entered; the waiver of the right to be proceeded against by indictment, if any is executed; and the pretrial conference report, if any has been filed.
Indictment after Waiver. Notwithstanding the defendant’s waiver of the right to be proceeded against by indictment, the prosecuting attorney may proceed by indictment.
The Information Process.
Procedure for Obtaining a Criminal Information. Any person having knowledge, whether first hand or not, of the facts constituting the offense for which the information is sought may be a complainant. The complainant shall convey to the court the facts constituting the basis for the information. The complainant’s account shall be either reduced to writing or recorded. The complainant shall sign the information under oath, before an appropriate judicial officer. Where the complainant signs by electronic signature transmitted with a filing, that signature constitutes the complainant’s declaration under the penalties of perjury as provided by Rule 2.1(4).
Probable Cause Requirement. The appropriate judicial officer shall not authorize a criminal information unless the information presented by the complainant establishes probable cause to believe that the person against whom the information is sought committed an offense.
Contents of the Presentation. The presentation shall state the offense charged and its statutory citation, the username of the person accused, the date and place of the conduct alleged, and the facts relied upon. Hearsay may be relied upon. The judicial officer may examine the complainant and may require the production of any recording, screenshot, radio log, or other record of the conduct alleged.
Denial. Where the judicial officer declines to authorize an information, the denial shall be entered on the record and does not bar a subsequent presentation upon additional facts, nor does it bar presentation of the matter to a grand jury.
Probable Cause Hearing; Kinds Distinguished. A determination that probable cause exists may be made in the following ways, which are distinct and are not substitutes for one another:
a determination of probable cause for the detention of a person arrested and held in custody, made at a first appearance under Rule 3.1 and 6 R. Stat. § 131.204;
a determination by a judicial officer authorizing a criminal information under subdivision (6)(b) of this rule;
a determination by a judicial officer that grounds exist for the issuance of an arrest warrant under Rule 6(1)(b) and 6 R. Stat. § 131.002;
Effect of a Finding. A determination of probable cause does not adjudicate guilt, does not fix or alter any sentencing timer, and does not preclude a motion to dismiss or a motion to suppress. A determination that probable cause is lacking requires the release of the person from custody but does not bar a later accusatory instrument charging the same offense upon a sufficient presentation.
Expungement Upon a First Appearance. Where the determination is made at a first appearance under Rule 3.1 and the court finds that the arrest lacks probable cause, the court shall in addition expunge the arrest from the person’s record, as 6 R. Stat. § 131.204(a)(3) requires and Rule 3.1(7)(b) provides.
Standards Distinguished. The standard governing a determination of probable cause for detention is that stated in 6 R. Stat. § 131.204(a)(1) and Rule 3.1(6). The standard governing a determination of probable cause to bind charges over for trial is that stated in 6 R. Stat. §§ 131.204(b)(1) and 131.204(b)(c)(1) and Rule 7.2(7). The two are distinct, and a finding under one is not a finding under the other.