RULE 43. PRESENCE OF THE DEFENDANT

(a) Presence Required. The defendant must be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this Rule.

(b) Continued Presence 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 will be considered to have waived the right to be present if a 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.

(c) Presence Not Required. A defendant need not be present

(1) when represented by counsel and the defendant is an organization, not an individual;

(2) when the offense is punishable by fine or by imprisonment for not more than one year or both, and the court, with the written consent of the defendant, permits arraignment, plea, trial, and imposition of sentence in the defendant's absence;

(3) when the proceeding involves only a conference or hearing upon a question of law; or

(4) when the proceeding involves a correction or reduction of sentence under Rule 35.

EXPLANATORY NOTE

Rule 43 was amended, effective January 1, 1980; March 1, 1990; .

Rule 43 is an adaptation of Rule 43 of the Proposed Amendments to the FRCrimP (52 F.R.D. 472 (April 1971)) and is designed to implement that part of the Sixth Amendment of the U.S. Constitution known as the "Confrontation Clause" and Section 13 of the North Dakota Constitution, which guarantees the accused the right to be present at the trial and confront his or her accusers but also recognizes that such right can be constitutionally waived. Subdivision (b) was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.

Subdivision (a) provides that the defendant has the right to be present at the arraignment, at the impaneling of the jury, the return of the verdict, and the sentencing; and, consistent with existing law, requires the defendant's presence with certain exceptions listed in subdivisions (b) and (c). Subdivision (a) includes the phrase "at the time of the plea" in addition to the arraignment (which is the usual and proper time for acceptance of a plea) for consistency and in conformity with the provisions of Rule 11(e) (2), which provides that the judge may set a time other than the arraignment for accepting a plea under a plea agreement.

Subdivision (b) differs from existing Rule 43, FRCrimP, in that it is designed to reflect Illinois v. Allen, (397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, rehearing denied, 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970)), which held that "there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; or (3) take him out of the courtroom until he promises to conduct himself properly."

Under existing Federal Rule 43, trial in absentia is limited to "voluntary absence (by the defendant) after trial has been commenced," and "can be read as precluding a * * * judge from exercising the third option held to be constitutionally permissible in Allen." (Advisory Committee Note to Proposed Rule 43, 52 F.R.D. 472 at page 473.) The language of the Rule is intended to make clear that the judge does have the power to exclude the defendant from the courtroom when the circumstances warrant such action.

The provision in (b)(1) which provides that the defendant's continued presence is not required if the defendant is voluntarily absent is consistent with State v. Thompson (56 N.D. 716, 219 N.W. 218 (1928)), which held that a defendant charged with a felony, who is voluntarily absent from the defendant's trial, has waived the right to be present at the rendition of the verdict. (See also Butler v. United States, 317 F.2d 249, 6 A.L.R.3d 582, rehearing denied June 1963, cert. denied, 375 U.S. 836, 838, 84 S.Ct. 67, 77, 11 L.Ed.2d 65 (1963), and Butler v. United States, 340 F.2d 63, cert. denied, 382 U.S. 847, 84 S.Ct. 77, 11 L.Ed.2d 65 (1963).) This voluntary absence may constitute a waiver even if the defendant has not been informed by the court of the defendant's obligation to remain during the trial.

Subdivision (b)(2) effective January 1, 1980, provides that the defendant may be removed from the courtroom for disruptive conduct, but only after being so warned.

Subdivision (c) provides for those instances in which the defendant in a prosecution need not be present.

Subdivision (c)(2) permits defendants in prosecutions (in which the punishment does not exceed a fine or imprisonment for more than one year or both) to be absent from the court proceedings. It is emphasized that this provision is discretionary with the court. If the court refuses to accept the defendant's absence from the proceedings, the defendant must then be present to plead to the charge (Rules 11(d) and 43(a)) after which the defendant may be voluntarily absent in accordance with subdivision (b)(1).

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.

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. See 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. 1973).

Subdivision (c)(3) recognizes that requiring the defendant's presence at a reduction hearing under Rule 35 may be unduly burdensome and the defendant's absence will not unduly prejudice the defendant. This subdivision should not be read to preclude the defendant's presence at such proceeding.

SOURCES: Procedure Committee Minutes of _______________; 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.

STATUTES AFFECTED:

SUPERSEDED: 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, NDCC.

CONSIDERED: 29-16-05, 29-26-11, NDCC.

CROSS REFERENCE: Rule 11, Pleas, NDRCrimP.