TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 10, 2015
RE: Rule 43, N.D.R.Crim.P., Defendant's Presence
At the end of the April meeting, the committee discussed recent amendments to Rule 43. A copy of the rule as amended is attached. A member pointed out that there was confusion among courts and attorneys on whether the rule allowed both the preliminary hearing and arraignment to be waived by a represented defendant in a felony case. The member said that the language of the rule only mentioned waiver of preliminary hearings. Another member said that a sample form in use in the South Central Judicial District, attached, only allowed waiver of the preliminary hearing. The Chair said it was important at some stage that the defendant be instructed by the court on the significance of a felony charge being brought and that this traditionally occurs at the arraignment.
The minutes of the April 2014 meeting, excerpt attached, show that the committee discussed the proposed amendments to Rule 43 at length and included only a reference to waiver of the preliminary hearing in the amended rule.
Staff communicated with attorney Mark Friese, who originally proposed the amendment, and he said that his intent was that a represented defendant be able to waive both the preliminary hearing and the arraignment. He suggested that the language of the rule be amended to make this clear by adding the words "and arraignment" after "preliminary hearing" in Rule 43(b)(1). He said that allowing a represented defendant to enter a not guilty plea in writing does not raise constitutional concerns. Mr. Friese, however, said that Rule 10 seems to require that an arraignment be conducted in open court. A copy of Rule 10 is attached. The committee may wish to discuss whether Rule 43 (and perhaps Rule 10) should be amended to allow a represented defendant to waive the arraignment.
At the April meeting, a member also pointed out that the words "if the court permits" in Rule 43(b) now apply to felony and misdemeanor cases. The member said this language seems to require the court to issue an order in each case, even in misdemeanor matters where allowing waivers had been routine. In the April 2014 minutes the point was raised that allowing waiver is always discretionary with the judge and that some judges do not allow waiver in misdemeanor cases. The committee may wish to discuss whether any amendments need to be made to Rule 43(b) to clarify whether the court needs to issue an order allowing waiver in each felony and misdemeanor case where it is requested.