RULE 43. DEFENDANT'S PRESENCE
DEFENDANT (a) Presence When Required.
The Unless this rule provides otherwise, the defendant must
be present at:
(1) the initial appearance, the arraignment,
and the time of the plea ,;
at every trial stage of the
trial, including the impaneling of the jury impanelment
the return of the verdict ,; and
at the imposition of sentence, except as otherwise provided by this
Presence by interactive television
under N.D.R.Crim.P. 5 or N.D.R.Crim.P.
10 is presence
for the purposes of this rule.
Continued presence When Not Required. The further
progress of the trial, including the
return of the verdict and the imposition of sentence may not be prevented and the defendant
waives the right to be present if the defendant, initially present at trial, or having pleaded
(1) is voluntarily absent after the trial has begun (whether or not the defendant has
informed by the court of the obligation to remain during the trial), or
(2) is voluntarily absent at the imposition of sentence, or
(3) after being warned by the court that disruptive conduct will cause the removal
defendant from the courtroom, persists in conduct that justifies the defendant's exclusion
from the courtroom.
(c) Presence not required. A defendant need not be present under any
of the following
when represented by counsel and the defendant is an organization, not an
(2) Misdemeanor Offense. when the
The offense is punishable by fine or by imprisonment
for not more than one year, or both, and the court, with the
defendant's written consent of
the defendant, the court permits arraignment, plea, trial, and
imposition of sentence and
sentencing to occur in the defendant's absence ;.
(3) (2) Conference or Hearing on Legal Question. when
the The proceeding involves only
a conference or hearing upon on a question of law ;
(4) (3) Sentence Correction. when the
The proceeding involves a the correction or reduction
of sentence under N.D.R.Crim.P. Rule 35.
(c) Waiving Continued Presence. The further progress of the trial, including the return of the verdict and the imposition of sentence, may not be prevented and the defendant waives the right to be present if the defendant, initially present at trial or having pleaded guilty:
(1) is voluntarily absent after the trial has begun (whether or not the defendant has been informed by the court of the obligation to remain during the trial);
(2) is voluntarily absent at the imposition of sentence; or
(3) after being warned by the court that disruptive conduct will cause the removal of the defendant from the courtroom, persists in conduct that justifies the defendant's exclusion from the courtroom.
Rule 43 was amended, effective January 1, 1980; March 1, 1990; March 1, 1998; March 1, 2004; __________________.
subdivisions (b) and (c) do Rule 43 does not require
the defendant's presence in
certain all instances, the subdivisions do rule
does not give a defendant the right to be absent.
The court has discretion whether to require the presence of the defendant.
In a non-felony case, if the defendant pleads guilty without appearing in court, a written
form must be used advising the defendant of his or her constitutional rights and creating a
record showing that the plea was made voluntarily, knowingly, and understandingly.
Appendix Form 17; Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274
(1969); Mills v. Municipal Court, 10 Cal. 3d 288, 515 P.2d 273, 110 Cal. Rptr. 329 (Cal.
Rule 43 was amended, effective ______________, 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.
Subdivision (a) was amended, effective March 1, 2004, in response to amendments to
N.D.R.Crim.P. Rule 5 and N.D.R.Crim.P.
Rule 10 allowing interactive television to be used
for the initial appearance and arraignment. N.D. Sup. Ct. Admin. R. 52 , which took effect
June 1, 2005, governs proceedings conducted by interactive television.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages 34-36; September 26-27, 2002, pages 13-14; January 30, 1997, pages 7-8; September 26-27, 1996, pages 8-10; January 26-27, 1995, pages 5-6; September 29-30, 1994, pages 2-4; April 28-29, 1994, pages 10-12; April 20, 1989, page 4; December 3, 1987, page 15; December 7-8, 1978, pages 27-28; October 12-13, 1978, pages 43-44; December 11-15, 1972, pages 41-43; May 15-16, 1969, pages 11-13.
SUPERSEDED: N.D.C.C. §§ 29-12-12, 29-13-02, 29-14-21, 29-16-03, 29-16-04, 29-16-06, 29-22-11, 29-26-04, 33-12-23.
CONSIDERED: N.D.C.C. §§ 29-16-05, 29-26-11.
CROSS REFERENCE: N.D.R.Crim.P. 5 (Initial Appearance Before the Magistrate); N.D.R.Crim.P. 10 (Arraignment); N.D.R.Crim.P. 11 (Pleas); N.D.R.Crim.P. 35 (Correcting or Reducing a Sentence) N.D.R.Crim.P. Appendix Form 17 (Misdemeanor Petition to Enter Plea of Guilty); N.D. Sup. Ct. Admin. R. 52 (Interactive Television).