RULE 44. RIGHT TO AND APPOINTMENT OF COUNSEL
(a) Appointment of counsel.
(1) Felony Cases.
Absent a knowing and intelligent waiver, every
An indigent defendant
facing a felony charge in state court is entitled to have counsel appointed at public
to represent the defendant at every stage of the proceedings
proceeding from initial
appearance before a magistrate through appeal in the courts of this
state in all felony
cases,unless the defendant waives this right.
(2) Non-Felony Cases.
Absent a knowing and intelligent waiver,
every An indigent
defendant facing a non-felony charge in state court is entitled to have counsel appointed
public expense to represent the defendant at every stage of the proceedings
initial appearance before a magistrate through appeal in the courts of
this state in all non-felony cases, unless the defendant waives this right
or the magistrate has determined
determines that sentence upon conviction will not include imprisonment.
(3) Non-Indigent Defendants. The court
appoint counsel to represent a defendant
at the defendant's expense if the defendant is unable to secure the assistance of
counsel and is not indigent.
(b) Ex Parte Application for Financial Assistance. An indigent defendant may apply ex
parte for financial assistance to obtain investigative, expert, or other services necessary for
an adequate defense. The application, the record of any proceeding, and the order on the
application must be kept under seal,
except upon order of unless the
court orders otherwise.
(c) Inquiry Into Joint Representation.
(1) Joint Representation. Joint representation occurs when:
(A) two or more defendants have been charged jointly under Rule 8(b) or have been joined for trial under Rule 13; and
(B) the defendants are represented by the same counsel, or counsel who are associated in law practice.
(2) Court's Responsibilities in Cases of Joint Representation. The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant's right to counsel.
Rule 44 was amended, effective September 1, 1983; March 1, 1990; March 1, 2001; March 1, 2004; March 1, 2006.
Rule 44 is a modification of Fed.R.Crim.P. 44 governing the appointment of counsel. In non-felony cases, this rule provides for appointment of counsel when the defendant faces a term of imprisonment, including a suspended sentence of imprisonment or a deferred imposition of sentence, unless imprisonment is waived. In contrast, Fed.R.Crim.P. 44 requires appointment of counsel for all indigent defendants.
Rule 44 was amended
in 1983, effective September 1, 1983, to add the
words "in the courts
of this state" in each of the first two sentences to make it clear that appointment of counsel
for indigent defendants at public expense is required only in proceedings through appeal in
the courts of North Dakota.
Rule 44 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 44 was amended, effective March 1, 2001, to authorize an application for financial assistance ex parte.
Rule 44 was amended, effective March 1, 2006, 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 (c) was added, effective March 1, 2006, to explain the court's duties in situations involving joint representation of multiple defendants. A court inquiry is necessary in these cases because serious conflicts can develop when a single attorney represents defendants who may have different interests.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages 36-37; September 18-19, 2003, pages 27-31; January 27-28, 2000, pages 3-4; September 23-24, 1999, pages 3-6; April 20, 1989, page 4; December 3, 1987, page 15; September 30-October 1, 1982, page 22; October 15-16, 1981, page 15; Joint Procedure Committee Minutes of April 24-26, 1973, page 14; December 11-15, 1972, pages 44-48; May 6-8, 1971, pages 1-11; November 20-21, 1969, pages 3-8; July 10-11, 1969, pages 16-22; Fed.R.Crim.P. 44.
SUPERSEDED: N.D.C.C. §§ 29-07-01, 29-07-04, 29-13-03, 33-12-09.
CONSIDERED: N.D.C.C. §§ 12-59-15, 29-01-06, 29-20-01.
CROSS REFERENCE: N.D.R.Crim.P. 5 (Initial Appearance Before the Magistrate);
N.D.R.Crim.P. 8 (Joinder of Offenses or Defendants); N.D.R.Crim.P. 13 (Joint Trial of
Separate Cases); N.D.R.Crim.P. 43 (Defendant's Presence