TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 52, N.D. Sup. Ct. Admin. R., Interactive Television
At its April 2005 meeting, the Committee had an opportunity to examine and comment on Admin. Rule 52, the statewide interactive television rule. The version of Admin. Rule 52 that the Committee examined took effect May 1, 2005. A copy is attached.
Even though the rule had just taken effect, the Supreme Court acted quickly to consider and implement the Committee's recommendations, along with some changes of its own, in a revised version of Admin. Rule 52 that took effect June 1, 2005.
One of the changes the Supreme Court made involved defense attorney participation in ITV criminal proceedings. The early rule allowed a defense attorney to participate from a site located apart from the defendant with court permission and the defendant's consent. The current rule does not allow this in guilty plea proceedings. In such a proceeding, the trial court must make findings and a record before it allows a defense attorney to participate from a site separate from the defendant.
Judge Karen Braaten and jail administrator Gary Gardner commented in the Grand Forks Herald that the rule's provisions requiring defense attorneys to be present at the same location as the defendant would limit the use of ITV in criminal proceedings. A copy of the article containing their comments is attached. The Committee may wish to discuss whether any amendments to the rule can be made that would address these concerns or whether any further amendments to the rule are necessary based on lessons learned during the year the rule has been in place.
Other courts have been experimenting with allowing increased participation in court proceedings by electronic means. In a recent Wisconsin habeas corpus case, the 7th Circuit reversed a state court conviction because the defendant's attorney had been allowed to participate in a guilty plea hearing by telephone instead of in-person with the defendant in court. A copy of the case, Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), and a U.S. Law Week report on the case are attached.
The VanPatten court is quite critical of the idea that a defense attorney could ever effectively represent a defendant from a location separate from the defendant. The bottom line of the VanPatten decision seems to be that the Constitution requires the defense attorney to be physically present with the defendant during any "critical stage" of the proceeding. The North Dakota Supreme Court has not had an ITV presence case like VanPatten, but it has stated that "[a] defendant has a fundamental right to counsel during all critical stages of the prosecution." State v. Murchison, 2004 ND 193, ¶ 8, 687 N.W.2d 725.
As discussed above, Admin. Rule 52 allows the defendant's attorney to be present in a location apart from the defendant in some cases. The Committee may wish to discuss whether there should be a provision in Admin. Rule 52 requiring defense attorneys to be physically in the company of the defendant at all critical stages of the prosecution.