RULE 17.1 OMNIBUS HEARING AND PRETRIAL CONFERENCE
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Rule 17.1 was amended, effective March 1, 1990.
Rule 17.1 differs substantially from Rule 17.1, FRCrimP, in that it incorporates within the Rule a new procedure designated the Omnibus Hearing. This proceeding is designed to serve pretrial needs regardless of whether the given case is expected to proceed to trial. It is intended to serve as an all-purpose hearing, dealing with a wide variety of matters in a greatly simplified, systematic way. Before such hearing, however, counsel will have been given adequate time to informally resolve as many issues as possible. The Omnibus Hearing changes existing practices and procedures prior to trial in four aspects: (1) its attempt to bring together at one court appearance as much as possible of the court actions required prior to trial, thus saving all persons concerned time, energy, and other resources; (2) its requirement of routine trial court exploration of the claims customarily available to the accused, utilizing a given check-list to ensure, insofar as possible, that none remain unexposed, unnecessarily subjecting the proceedings to subsequent invalidation; (3) its requirement that these customary claims be raised and considered, insofar as possible, without the preparation and filing of papers which so frequently perform no useful function in the proceedings; and (4) its requirement that claims which are available for assertion at this time be waived if not asserted. There are other features within the Rule essential to a properly conducted Omnibus Hearing, but it is the combination of these four provisions which renders it unique. [For a similar procedure recently initiated in Minnesota, see State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965).] Subdivision (a) states the time when the Omnibus Hearing should be held. Subsection (a)(2) indicates those activities which should be conducted prior to the Omnibus Hearing. Only when these activities have been completed should the proceeding come under court supervision, in the form of the Omnibus Hearing, as set out in Subdivision (b). Subdivisions (b) and (c) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended. Subdivision (b) sets out the procedures of the Omnibus Hearing, which is characterized by a court hearing or hearings to ensure that discovery has been properly conducted and that issues are simply and efficiently raised. It entails court supervision to ensure that what has been done has been correctly done, and that which needs to be done will be done properly and without unnecessary delay. The A.B.A. Standards for Criminal Justice Relating to Discovery and Procedure Before Trial, 5.3 at page 115 (Approved Draft, 1970), states: "* * * Additional matters ordinarily requiring judicial attention after the discovery and investigation conducted in the first stage are the variety of pretrial motions and other requests that typically suggest themselves to counsel. In order that all of these matters be attended to as expeditiously as possible, the Advisory Committee recommends that as many as practicable be considered at a single hearing and with a minimum of formalities and filings. Because the Committee was not aware of any existing practice where the attempt is regularly made to handle thus the variety of the pretrial questions on a single occasion, the Committee found no existing terminology descriptive of the kind of hearing it here recommends. In recognition that the hearing is intended to serve an unusually wide variety of pretrial procedural purposes, the Advisory Committee denominated it an Omnibus Hearing * * *". Subsection (b)(1) establishes an appropriate check-list which may assist the court in ensuring that consideration is given those issues which, when ignored, typically form the basis for subsequent invalidation of an adjudication of guilt. Subsection (b)(1)(vi) is important because it establishes the conditions through which a pretrial conference under Subdivision (c) will be held. Subsection (b)(2) describes the methods recommended for raising issues. It prescribes that the issues may be raised without prior notice either to the court or the opposing party. This limits the number of required written motions, saving both counsel and the court time and effort. Subsection (b)(3) provides that a failure to raise any issue which is then ripe for decision, from the standpoint of available information, should be considered a waiver of such issue. The provision is intended to reduce the number of unnecessary and repetitious hearings and trials. Such a procedure is consistent with the U.S. Supreme Court ruling that if the trial court transcript shows that the accused has been given full and fair hearing on a particular issue, and that all facts material to the issue have been judicially determined, no additional evidentiary hearing on the issue will be required. [Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).] The Court has stated that certain forms of review (i.e., direct review) may be foreclosed pursuant to procedural requirements if those requirements serve "a legitimate state interest." [Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, rehearing denied, 380 U.S. 926, 85 S.Ct. 878, 13 L.Ed.2d 813 (1965).] This provision should be read in light of Rule 41(c), FRCrimP, which requires that a motion to suppress illegally seized evidence be made before trial if the defendant then has knowledge of the grounds on which to base it. This is in the court's own words "a crystallization of decisions of this Court requiring that procedure, and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt." [Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960).] Accordingly, the omnibus procedure has been designed to minimize the number of instances in which the defendant will be unaware of the grounds for making the defendant's motions by the time of the Omnibus Hearing and, through the use of the check-list forms, to make it a matter of record that the defendant has been afforded the opportunity. Subdivision (c) is similar to Rule 17.1, FRCrimP. However, under Subdivision (c) the pretrial conference is viewed as distinct from the Omnibus Hearing and as a procedural device specifically directed to planning for a trial. This stage of procedure prior to trial should be conducted only in those cases in which there is a reasonable possibility of a trial. Subsection (b)(1)(vi) states the three situations in which a Pretrial Conference should be held. These are: (1) when the anticipated trial is likely to be protracted; (2) when the anticipated trial is otherwise likely to be complicated; and (3) when counsel concur in requesting the conference. Subdivision (c) differs from the Federal Rule in that it lists several examples of material which could or should be handled at a Pretrial Conference. Subdivision (c) requires the defendant's presence unless waived, and requires that the conference be recorded.
SOURCES: Minutes of the Rules Committee Meetings of 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; FRCrimP, Rule 17.1;
37 F.R.D. 95 n. page 104-105; Wright, Federal Practice and Procedure: Criminal, 291 292 (1969); 8 Moore's Federal Practice, Chapter 17.1 (Cipes, 2d Ed. 1970); Barron and Holtzoff, Federal Practice and Procedure: Criminal, 2051-2053 (1967 pocket part); A.B.A. Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial, 5 (Approved Draft, 1970).
STATUTES AFFECTED: None.