M E M O

TO: Joint Procedure Committee

FROM: Gerhard Raedeke

RE: Rule 43, N.D.R.Crim.P.; Presence of the Defendant

At the last meeting, the Committee approved amendments to Rule 43, N.D.R.Crim.P. However, the explanatory note remains to be considered.

Previously, the Committee instructed staff to draft an additional provision for the explanatory note clarifying a judge has discretion whether to require the presence of a defendant under Rule 43. As drafted, the proposal provides:

"Although subdivisions (b) and (c) do not require the defendant's presence in certain instances, the subdivisions do not give a defendant the right to be absent. The court has discretion whether to require the presence of the defendant."

Rule 43 does not give defendants the right to absent themselves from the courtroom. U.S. v. Fritzpatrick, 437 F.2d 19 (2nd Cir. 1970). Commentary explains:

"'The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right,' and thus it does not follow from the fact that the right of presence can be waived or forfeited that a defendant can insist upon a right not to attend his trial."

3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 23.2 (1984), quoting Singer v. United States, 380 U.S. 24 (1965).