TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 13, 2013
RE: Rule 43, N.D.R.Crim.P., Defendant's Presence
Committee member Bruce Quick has forwarded a request from attorney Mark Friese that the committee 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 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.
A copy of City of Mandan v. Baer, 1998 ND 101, is attached for the committee's reference. This appears to be the key North Dakota case on defendant's presence.
Proposed amendments to Rule 43 are attached that would add an exception to subdivision (b), allowing a represented defendant in a felony case to enter a not guilty plea in writing as suggested by Mr. Friese.