RULE 44. RIGHT TO AND
ASSIGNMENT APPOINTMENT OF COUNSEL
(a) Appointment of Counsel. Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance before a magistrate through appeal in the courts of this state in all felony cases. Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance before a magistrate through appeal in the courts of this state in all non-felony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment. The court shall 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 the court.
Rule 44 was amended, effective September 1, 1983; March 1, 1990; March 1, 2001.
Rule 44 is a modification of Fed.R.Crim.P. 44, governing the appointment of counsel, and implements the holding of the U.S. Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). This Rule
would allow only provides for appointment of counsel only when so required under the holding of Argersinger, whereas the present Federal Rule requires appointment of counsel for all indigent defendants. It is not the intent of this Rule to impose upon counties the expenses of the defense of indigents in municipal courts.
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
the 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.
SOURCES: Joint Procedure Committee Minutes of 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
; Wright, Federal Practice and Procedure: Criminal, § 731-740 (1969); 8A Moore's Federal Practice, Chapter 44 (Cipes, 2d Ed. 1971); Barron, Federal Practice and Procedure: Criminal, § 2461-2462 (1951); A.B.A. Standards for Criminal Justice, Standards Relating to Function of the Trial Judge (Approved Draft, 1972), Providing Defense Services, § 6-7 (Approved Draft, 1972).
SUPERSEDED: N.D.C.C. §§ 29-07-01,
29-07-01.1 (first paragraph only), 29-07-04, 29-13-03, 33-12-09.
CONSIDERED: N.D.C.C. §§ 12-59-15, 29-01-06, 29-20-01.
CROSS REFERENCES: N.D.R.Crim.P. 5.--Initial Appearance Before the Magistrate; N.D.R.Crim.P. 43.--Presence of the Defendant.