RULE 43. DEFENDANT'S PRESENCE

Effective Date: 10/1/2016

(a) When Required.

(1) In General. Unless this rule provides otherwise, the defendant must be present at:
(A) the initial appearance, the arraignment, and the plea;
(B) every trial stage, including jury impanelment and the return of the verdict; and
(C) sentencing.

(2) Reliable Electronic Means. Presence permitted by contemporaneous audio or audiovisual transmission by reliable electronic means is presence for the purposes of this rule.

(3) Jury Question.

(A) In General. If, after beginning deliberations, the members of the jury request information on a point of law or request to have testimony read or played back to them, they must be brought into the courtroom. The court's response must be provided in the presence of counsel and the defendant.
(B) Agreed Manner of Response. In the alternative, after consultation with counsel in the presence of the defendant, the court may respond to a jury's question or request for testimony in a manner other than in open court if agreed to by counsel and the defendant.

(b) When Not Required. If the court permits, a defendant need not be present under any of the following circumstances:

(1) Felony Offense. The offense is punishable by imprisonment for more than one year, and with a represented defendant's written consent, and written acknowledgment that the defendant was advised of the rights listed in Rules 5(b)(1) and (2) and 5(c), the preliminary hearing, the arraignment, and entry of a not guilty plea may occur in the defendant's absence.
(2) Misdemeanor Offense or Infraction. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant's written consent and written acknowledgment that the defendant was advised of the rights listed in Rules 5(b)(1) and (3) and 11(b), the arraignment, plea, trial, or sentencing may occur in the defendant's absence.
(3) Conference or Hearing on Legal Question. The proceeding involves only a conference or hearing on a question of law.
(4) Sentence Correction. The proceeding involves the correction or reduction of sentence under Rule 35.

(c) Waiving Continued Presence. The further progress of the trial, including the return of the verdict and the imposition of sentence, may not be prevented and the defendant waives the right to be present if the defendant, initially present at trial or having pleaded guilty:

(1) is voluntarily absent after the trial has begun (whether or not the defendant has been informed by the court of the obligation to remain during the trial);
(2) is voluntarily absent at the imposition of sentence; or
(3) after being warned by the court that disruptive conduct will cause the removal of the defendant from the courtroom, persists in conduct that justifies the defendant's exclusion from the courtroom.

Rule 43 was amended, effective January 1, 1980; March 1, 1990; March 1, 1998; March 1, 2004; March 1, 2006; March 1, 2008; March 1, 2010; March 1, 2015, October 1, 2016.

Although Rule 43 does not require the defendant's presence in all instances, the rule does not give a defendant the right to be absent. The court has discretion whether to require the presence of the defendant.

In a non-felony case, if the defendant pleads guilty without appearing in court, a written form must be used advising the defendant of his or her constitutional rights and creating a record showing that the plea was made voluntarily, knowingly, and understandingly.

Rule 37 provides for summary affirmance if the defendant does not appear at a trial anew.

Rule 43 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.

Subdivision (a) was amended, effective March 1, 2004, in response to amendments to Rule 5 and Rule 10 allowing interactive television to be used for the initial appearance and arraignment.

Subdivision (a) was amended, effective March 1, 2010, to explain requirements for the consideration of questions submitted by the jury after deliberations begin.

Subdivision (a) was amended, effective March 1, 2015, to allow a defendant to be present by contemporaneous audio or audiovisual transmission using reliable electronic means. Any appearance by a defendant by electronic means must be consistent with the standards set by N.D. Sup. Ct. Admin. R. 52, which governs the use of contemporaneous transmission by reliable electronic means in court proceedings.

Subdivision (b) was amended, effective March 1, 2015, to allow a represented defendant in a felony case to waive presence at the preliminary hearing and submit a not guilty plea in writing.

Subdivision (b) was amended, effective October 1, 2016, to clarify that a represented defendant in a felony case may waive presence at the arraignment in writing and to require all defendants seeking waiver of presence to acknowledge in writing that they were advised of their rights.

SOURCES: Joint Procedure Committee Minutes of May 12-13, 2016, pages 2-10; January 28-29, 2016, page 7; September 24-25, 2015, pages 21-23; April 24-25, 2014, pages 12-15; May 21-22, 2009, pages 10-11; January 29-30, 2009, pages 13-17; September 28-29, 2006, pages 8-10; January 27-28, 2005, pages 34-36; September 26-27, 2002, pages 13-14; January 30, 1997, pages 7-8; September 26-27, 1996, pages 8-10; January 26-27, 1995, pages 5-6; September 29-30, 1994, pages 2-4; April 28-29, 1994, pages 10-12; April 20, 1989, page 4; December 3, 1987, page 15; December 7-8, 1978, pages 27-28; October 12-13, 1978, pages 43-44; December 11-15, 1972, pages 41-43; May 15-16, 1969, pages 11-13.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. §§ 29-12-12, 29-13-02, 29-14-21, 29-16-03, 29-16-04, 29-16-06, 29-22-05, 29-22-11, 29-26-04, 33-12-23.

CONSIDERED: N.D.C.C. §§ 29-16-05, 29-26-11.

CROSS REFERENCE: N.D.R.Crim.P. 5 (Initial Appearance Before the Magistrate); N.D.R.Crim.P. 10 (Arraignment); N.D.R.Crim.P. 11 (Pleas); N.D.R.Crim.P. 35 (Correcting or Reducing a Sentence); N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. Appendix Form 17 (Misdemeanor Petition to Enter Plea of Guilty); N.D.R.Crim.P. Appendix Form 18 (Petition to Waive Preliminary Hearing and Arraignment in a Felony Case); N.D. Sup. Ct. Admin. R. 52 (Contemporaneous Transmission by Reliable Electronic Means ).

Effective Date Obsolete Date
10/01/2016 View
03/01/2015 10/01/2016 View
03/01/2010 03/01/2015 View
03/01/2008 03/01/2010 View
03/01/2006 03/01/2008 View
03/01/2004 03/01/2006 View
03/01/1998 03/01/2004 View
01/01/1980 03/01/1998 View