RULE 43. DEFENDANT'S PRESENCE
OF THE DEFENDANT (a) Presence When Required. The Unless this rule provides otherwise, the defendant must be present at:
(1) the initial appearance, the initial arraignment,
at and the time of the plea ,;
at every trial stage of the trial, including the impaneling of the jury impanelment and the return of the verdict ,; and
at the imposition of sentence, except as otherwise provided by this rule sentencing.
Presence by interactive television under
N.D.R.Crim.P. Rule 5 or N.D.R.Crim.P. Rule10 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 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), 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 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 under any of the following circumstances:
(1) Organizational Defendant. The defendant is an organization
when represented by counsel and the defendant is an organization, not an individual who is present ;.
(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) Conference or Hearing on Legal Question.
when the The proceeding involves only a conference or hearing upon on a question of law ; or.
(4) 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.
(1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:
(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;
(B) when the defendant is voluntarily absent during sentencing; or
(C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.
(2) Waiver's Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence.
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.
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).
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.
SOURCES: Joint Procedure Committee Minutes of __________________ pages ___; 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 (Correction or Reduction of Sentence) N.D.R.Crim.P. Appendix Form 17 (Misdemeanor Petition to Enter Plea of Guilty).