RULE 17.1. OMNIBUS HEARING AND PRETRIAL CONFERENCE
(a) Setting of Omnibus Hearing.
(1) If a guilty plea
of guilty is not entered at the arraignment, the
court may, with agreement
of the parties, set a time for schedule an omnibus hearing.
determining the date for the scheduling an omnibus
hearing the court shall must
allow counsel sufficient time:
iA) to initiate and complete discovery required or
authorized under this Rule;
iiB) to conduct further investigation necessary
to the defendant's case; and
iiiC) to continue plea discussion.
(b) Omnibus Hearing.
(1) At the omnibus hearing, the
trial court, in the
counsel and defendant's presence of
counsel and the defendant, --unless the defendant waives the right to be
present ,-- shall must
proceed in accordance with the following checklist:
iA) ensure that rules regarding provisions of counsel
have been complied with , if required,
counsel has been appointed for the defendant;
iiB) ascertain determine whether
the parties have completed the discovery authorized
under N.D.R.Crim.P. 16 is complete , and, if not,
make orders appropriate to expedite
iiiC) ascertain determine whether
there are requests for additional disclosures under
ivD) make rulings rule on any
motions or other requests then pending pending motion or
request , and ascertain determine whether any
additional motions or requests motion or
request will be made at the hearing or a continued portions
vE) ascertain determine whether
there are any procedural or constitutional issues which
should be considered exist;
viF) upon on agreement of counsel, or
upon on a finding that the trial is likely to
protracted or otherwise unusually complicated complex, set a
time for schedule a pretrial
conference under subdivision Rule 17.1(c); and
viiG) upon on the defendant's request,
permit a change of plea.
(2) Unless the court otherwise directs,
all motions and other requests prior to trial
pretrial motion or request must be reserved for and presented
orally at the omnibus hearing.
All issues presented at the omnibus hearing may be raised without prior notice
counsel or by the court. If discovery, investigation, or preparation
on an evidentiary hearing,
or a formal presentation is necessary for a fair determination of any issue, the omnibus
hearing may be continued until all matters are properly disposed of.
(3) Any pretrial motion, request or issue
which is not raised at the
omnibus hearing shall
be deemed is waived, unless the party concerned did not have
the information necessary to
make the motion or request or raise the issue.
(4) Stipulations by any party or
the party's party counsel
are binding upon will bind the
parties at trial unless set aside or modified by the court in the interests of justice.
(5) A record
should must be made of all proceedings at the
hearing ; such a record may be
either a verbatim record, or a summary memorandum (dictated or written on an appropriate
court-established form) indicating disclosures made, rulings and orders of the court,
stipulations, and any other matters determined or pending.
(c) Pretrial Conference.
If a trial is likely to be protracted or otherwise unusually complicated, or upon
by agreement of counsel, the trial court may (in addition to the omnibus hearing) hold
or more pretrial conferences, with counsel and the defendant present, unless the defendant
waives the right to be present, to consider such matters as will On its own, or on a
motion, the court may hold one or more pretrial conferences--in addition to the omnibus
hearing--to promote a fair and expeditious trial ,. Counsel and the
defendant must be present
at any pretrial conference, unless the defendant waives the right to be present.
(2) A pretrial conference may be held for purposes including:
iA) making stipulations as to facts;
iiB) marking exhibits;
iiiC) waiving foundation as to exhibits;
ivD) deleting from statements material prejudicial to a
vE) severance of defendants or offenses;
viF) arranging for seating of defendants and counsel;
viiG) examining juror lists and questionnaires;
viiiH) instructing as to the conduct of
ixI) deciding the number and use of peremptory challenges;
xJ) establishing procedure on objections when there are multiple
xiK) establishing order of presentation of evidence and
arguments when there are multiple
xiiL) establishing order of cross-examination when there are
multiple defendants; and
xiiiM) providing for necessary temporary absence of defense
counsel during trial.
23) Conferences Pretrial conferences
must be recorded verbatim. At the conclusion of a
conference, a pretrial order, or memorandum of the matters agreed upon, must be signed by
counsel, approved by the court and filed ,. The order will bind
which is binding upon the
parties at trial, on appeal, and in postconviction proceedings unless set aside or modified
the court, in the interests of justice, sets it aside or modifies it.
However, admissions of fact
by a defendant if present bind the defendant only if included in the pretrial order and
prosecution may not use any statement or admission made during a pretrial conference by
the defendant or the defendant's attorney unless it is in writing and is signed by the
defendant as well as by and the defendant's attorney.
Rule 17.1 was amended, effective March 1, 1990; March 1, 2006.
Rule 17.1 was amended, effective March 1, 2006, in response to the December 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.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, page 14;
20, 1989, page 4; December 3, 1987, page 15; April 24-26, 1973, page 10; June 26-27, 1972,
pages 20-26; July 25-26, 1968, page 10; Fed.R.Crim.P. 17.1
; A.B.A. Standards for
Justice, Standards Relating to Discovery and Procedure Before Trial, § 5 (Approved
STATUTES AFFECTED: None
CROSS REFERENCES: N.D.R.Crim.P. 16 (Discovery and Inspection).