Obsolete Date: 3/1/2006
(a) Setting of Omnibus Hearing.
(1) If a plea of guilty is not entered at the arraignment, the court may, with agreement of the parties, set a time for an Omnibus Hearing.
(2) In determining the date for the Omnibus Hearing the court shall allow counsel sufficient time:
(i) to initiate and complete discovery required or authorized under this Rule;(ii) to conduct further investigation necessary to the defendant's case; and(iii) to continue plea discussion.
(b) Omnibus Hearing.
(1) At the Omnibus Hearing, the trial court, in the presence of counsel and the defendant, unless the defendant waives the right to be present, shall proceed in accordance with the following checklist:
(i) ensure that rules regarding provisions of counsel have been complied with;(ii) ascertain whether the parties have completed the discovery authorized under Rule 16, and if not, make orders appropriate to expedite completion;(iii) ascertain whether there are requests for additional disclosures under Rule 16;(iv) make rulings on any motions or other requests then pending, and ascertain whether any additional motions or requests will be made at the hearing or continued portions thereof;(v) ascertain whether there are any procedural or constitutional issues which should be considered;(vi) upon agreement of counsel, or upon a finding that the trial is likely to be protracted or otherwise unusually complicated, set a time for a Pretrial Conference under Subdivision (c);and(vii) upon the defendant's request, permit a change of plea.
(2) Unless the court otherwise directs, all motions and other requests prior to trial shall be reserved for and presented orally at the Omnibus Hearing. All issues presented at the Omnibus Hearing may be raised without prior notice either by counsel or by the court. If discovery, investigation, or preparation on an evidentiary hearing or a formal presentation is necessary for a fair determination of any issue, the Omnibus Hearing may be continued until all matters are properly disposed of.
(3) Any pretrial motion, request or issue which is not raised at the Omnibus Hearing shall be deemed waived, unless the party concerned did not have the information necessary to make the motion or request or raise the issue.
(4) Stipulations by any party or the party's counsel are binding upon the parties at trial unless set aside or modified by the court in the interests of justice.
(5) A record should be made of all proceedings at the hearing: such a record may be either a verbatim record, or a summary memorandum (dictated or written on an appropriate court-established form) indicating disclosures made, rulings and orders of the court, stipulations, and any other matters determined or pending.
(c) Pretrial Conference.
(1) If a trial is likely to be protracted or otherwise unusually complicated, or upon request by agreement of counsel, the trial court may (in addition to the Omnibus Hearing) hold one or more Pretrial Conferences, with counsel and the defendant present, unless the defendant waives the right to be present, to consider such matters as will promote a fair and expeditious trial, including:
(i) making stipulations as to facts;(ii) marking exhibits;(iii) waiving foundation as to exhibits;(iv) deleting from statements material prejudicial to a co-defendant;(v) severance of defendants or offenses;(vi) arranging for seating of defendants and counsel;(vii) examining juror lists and questionnaires;(viii) instructing as to conduct of voir dire;(ix) deciding the number and use of peremptory challenges;(x) establishing procedure on objections when there are multiple counsel;(xi) establishing order of presentation of evidence and arguments when there are multiple defendants;(xii) establishing order of cross-examination when there are multiple defendants;and(xiii) providing for necessary temporary absence of defense counsel during trial.
(2) 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, which is binding upon the parties at trial, on appeal, and in post-conviction proceedings unless set aside or modified by the court in the interests of justice. However, admissions of fact by a defendant if present bind the defendant only if included in the pretrial order and signed by the defendant as well as by 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).