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 completion;
iiiC) ascertain determine whether there are requests for additional disclosures under N.D.R.Crim.P. Rule16;
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 thereof hearing;
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 may be 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 shall any 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 either by 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 request by agreement of counsel, the trial court may (in addition to the omnibus hearing) hold one 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 party's 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 codefendant;
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 voir dire;
ixI) deciding the number and use of peremptory challenges;
xJ) establishing procedure on objections when there are multiple counsel;
xiK) establishing order of presentation of evidence and arguments when there are multiple defendants;
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 by 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 The 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;______________.
Rule 17.1 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.
SOURCES: Joint Procedure Committee Minutes of _____________, pages ____; April 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 Criminal Justice, Standards Relating to Discovery and Procedure Before Trial, § 5 (Approved Draft, 1970).
STATUTES AFFECTED: None
CROSS REFERENCES: N.D.R.Crim.P. 16 (Discovery and Inspection).