TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 10, 2014
RE: Rule 43, N.D.R.Crim.P., Defendant's Presence
Committee member Bruce Quick has forwarded a request from attorney Mark Friese asking the committee to consider amending Rule 43 to allow a represented defendant in a felony case to enter a not guilty plea in writing.
A defendant has a constitutional right to be present in the courtroom at every stage in of the trial, but the right is not absolute and may be waived by the defendant. See State v. Newman, 2007 ND 148. "[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730 (1987). Rule 43 unambiguously requires the defendant to be present at "the initial appearance, the arraignment, and the plea," but provides specific instances when this presence is not required. In a misdemeanor case, for example, the whole proceeding can take place without the defendant present.
The Case Flow Management Committee heard about Mr. Friese's proposal and invited staff to explain it at the committee's March 7 meeting. Case flow committee members said that if the change was accepted, it would need to include a waiver of the preliminary hearing. Staff has revised the proposal in accordance with this suggestion.
Case flow committee members were divided about the proposal. Those who supported it said it would be helpful to attorneys, defendants and the courts when an initial appearance needs to take place in a rural county and lengthy travel is required for a short hearing. They said it would also cut back on the need to schedule hearings in busy counties.
Members who opposed it said it is important for a felony defendant to make an appearance in person to face charges and to enter a plea. These members said requiring such an appearance served the interests of the justice system as a whole and of the defendant in particular because it gives the court an opportunity to explain the charges and to explain all the rights possessed by the defendant. They said this supplements and reinforces any explanation the attorney may provide the defendant.
Judge Nelson, a member of the case flow committee, recommended an additional amendment that would permit a defendant to be present by telephone if the court allows. Staff has added this amendment to the proposal along with additional language allowing appearances by "reliable electronic means," which is the term used in N.D.R.Crim.P. 4.1. Judge Nelson said that he had communicated with members of the Williston area bar and that they support the proposed amendments allowing pleas to be entered in writing and allowing appearances by telephone.
Judge Nelson recommended that N.D. Sup. Ct. Admin. R. 52 be amended to make telephone appearances subject to the same standards as ITV appearances. Proposed amendments to Admin. Rule 52 are the next item on the committee agenda.
Proposed amendments to Rule 43 are attached.