RULE 43. DEFENDANT'S PRESENCE
(a) When required. Unless this rule provides otherwise, the defendant must be present at:
(1) the initial appearance, the arraignment, and the plea;
(2) every trial stage, including jury impanelment and the return of the verdict; and
Presence by interactive television is presence for the purposes of this rule.
(b) When not required. A defendant need not be present under any of the following circumstances:
(1) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant's written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant's absence.
(2) Conference or hearing on legal question. The proceeding involves only a conference or hearing on a question of law.
(3) Sentence correction. The proceeding involves the correction or reduction of sentence under Rule 35.
(c) Waiving continued presence. 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.
Rule 43 was amended, effective January 1, 1980; March 1, 1990; March 1, 1998; March 1, 2004; March 1, 2006 ;____________________.
Although Rule 43 does not require the defendant's presence in all instances, the 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.
Under Rule 37, which deals with appeals to the district court, the district court may summarily affirm the judgment if the defendant is not present at a trial anew.
Rule 43 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 (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. N.D. Sup. Ct. Admin. R. 52, which took effect June 1, 2005, governs proceedings conducted by interactive television.
Sources: Joint Procedure Committee Minutes of _____________ page ______; January 27-28, 2005, pages 34-36; 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 (Correcting or Reducing a Sentence); N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. Appendix Form 17 (Misdemeanor Petition to Enter Plea of Guilty); N.D. Sup. Ct. Admin. R. 52 (Interactive Television).