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, unless this rule, Rule 5, or Rule 10 provide
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 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),
(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.
Rule 43 was amended, effective January 1, 1980; March 1, 1990; March 1, 1998; March 1, 2004.
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 (a) was amended, effective March 1, 2004, in response to amendments to Rule 5 and Rule 10 allowing interactive television to be used for the initial appearance and arraignment.
SOURCES: Joint Procedure Committee Minutes of 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.