(a) Setting of Omnibus Hearing.
(1) If a guilty plea is not entered at the arraignment, the court may, with agreement of the parties, schedule an omnibus hearing.
(2) In scheduling an omnibus hearing the court must allow counsel time:
(A) to initiate and complete discovery;
(B) to conduct investigation necessary to the defendant's case; and
(C) to continue plea discussion.
(b) Omnibus Hearing.
(1) At the omnibus hearing, the court, in counsel and defendant's presence—unless the defendant waives the right to be present—must:
(A) ensure that, if required, counsel has been provided for the defendant;
(B) determine whether discovery is complete and, if not, make orders to expedite completion;
(C) determine whether there are requests for additional disclosures under Rule16;
(D) rule on any pending motion or request and determine whether any additional motion or request will be made at the hearing or a continued hearing;
(E) determine whether any procedural or constitutional issues exist;
(F) on agreement of counsel, or on a finding that the trial may be protracted or complex, schedule a pretrial conference under Rule 17.1(c); and
(G) on the defendant's request, permit a change of plea.
(2) Unless the court otherwise directs, any pretrial motion or request must be presented at the omnibus hearing. All issues presented at the omnibus hearing may be raised without prior notice by counsel or the court. If discovery, investigation, an evidentiary hearing, or a formal presentation is necessary for a fair determination of any issue, the omnibus hearing may be continued.
(3) Any pretrial motion, request or issue not raised at the omnibus hearing is waived, unless the party did not have the information necessary to make the motion or request or raise the issue.
(4) Stipulations by any party or party counsel will bind the parties at trial unless set aside or modified by the court in the interests of justice.
(5) A record must be made of all proceedings at the hearing indicating disclosures made, rulings and orders of the court, stipulations, and any other matters determined or pending.
(c) Pretrial Conference.
(1) On its own, or on a party's motion, the court may hold one or more pretrial conferences—in addition to the omnibus hearing—to promote a fair and expeditious trial. Counsel and the defendant must be present at any pretrial conference, unless the defendant waives the right to be present.
(2) A pretrial conference may be held for purposes including:
(A) making stipulations to facts;
(B) marking exhibits;
(C) waiving foundation to exhibits;
(D) deleting from statements material prejudicial to a codefendant;
(E) severance of defendants or offenses;
(F) arranging for seating of defendants and counsel;
(G) examining juror lists and questionnaires;
(H) instructing the conduct of voir dire;
(I) deciding the number and use of peremptory challenges;
(J) establishing procedure on objections when there are multiple counsel;
(K) establishing order of presentation of evidence and arguments when there are multiple defendants;
(L) establishing order of cross-examination when there are multiple defendants; and
(M) providing for necessary temporary absence of defense counsel during trial.
(3) Pretrial conferences must be recorded verbatim. At the conclusion of a conference, a pretrial order, or memorandum of the matters agreed upon, must be signed by counsel, approved by the court and filed. The order will bind the parties at trial, on appeal, and in postconviction proceedings unless the court, in the interests of justice, sets it aside or modifies it. The prosecution may not use any statement or admission made during a pretrial conference by the defendant or the defendant's attorney unless it is in writing and is signed by the defendant and the defendant's attorney.
Rule 17.1 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.
Paragraph (b)(1) was amended, effective June 1, 2006, to remove a reference to court appointment of counsel for indigents. Courts ceased appointing counsel for indigents on January 1, 2006, when the North Dakota Commission on Legal Counsel for Indigents became responsible for defense of indigents.
SOURCES: Joint Procedure Committee Minutes of April 27-28, 2006, pages 2-5, 15-17; January 27-28, 2005, page 14; 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; Fed.R.Crim.P. 17.1.
STATUTES AFFECTED: None
CROSS REFERENCES: N.D.R.Crim.P. 16 (Discovery and Inspection).