SUPREME COURT AMENDS CRIMINAL PROCEDURE, ADMINISTRATIVE, AND LAWYER ADMISSION RULES
SUPREME COURT AMENDS CRIMINAL PROCEDURE, ADMINISTRATIVE, AND LAWYER ADMISSION RULES
MIKE HAGBURG Attorney at Law
On Oct. 1, amendments to North Dakota rules related to criminal procedure, access to court records, and lawyer admission and practice went into effect.
Criminal Procedure Rule 43( b)( 1) was amended to allow a represented defendant in a felony case, who wishes to plead not guilty, to waive presence at the preliminary hearing, the arraignment, and the entry of plea. Criminal Procedure Rule 10, which generally requires arraignment to be conducted in“ open court,” was amended to account for the new waiver of presence allowed by Rule 43. Waiver of presence in a felony case, however, remains very limited in comparison to the existing misdemeanor case waiver options provided by Rule 43( b)( 2). In addition to being able to waive the arraignment, a misdemeanor defendant may plead guilty and be sentenced without appearing in court.
Because of the significance of the rights involved, waiver of presence in both felony and misdemeanor cases must be done in writing. The Oct. 1 amendments
18 THE GAVEL to Rule 43 require felony defendants seeking waiver to acknowledge in writing they were advised of the rights listed in Criminal Rule 5( b) and( c). Misdemeanor defendants must now acknowledge in writing they were advised of the rights listed in Rule 5( b) and 11( b).
Rule 5( b) lists the advice the magistrate must provide at the preliminary examination, while Rule 5( c) discusses the right to a preliminary hearing. Rule 11( b) lists the information that must be provided to a defendant who is pleading guilty.
A new Criminal Procedure Form 18, along with an update of Form 17, was approved as part of the Oct. 1 amendments. Both forms integrate the new amendments to Rule 43. Form 18 provides a sample petition for waiver of preliminary hearing and arraignment in a felony case, while Form 17 is a petition to plead guilty in a misdemeanor case.
Administrative Rule 40 on access to court records and Administrative Rule 41 on general court records access were also amended effective Oct. 1. The amendments allow a motion to be made to limit public access to a court recording if it includes certain specific content, including information that would be restricted under Rule of Court 3.4, such as social security numbers, birth dates, financial account numbers, or the names of minors. The amendments, however, allow parties, their attorneys, and government officials to retain access to court recordings unless otherwise restricted by court order.
A new Admission to Practice Rule 3.3 was adopted effective Oct. 1. This rule provides a certification process for lawyers who are spouses of military service members so they can be permitted to practice in North Dakota. Rule 3.3 provides general requirements for certification, as well as continuing education requirements. It also details allowable scope of practice, disciplinary jurisdiction, and how the certification terminates. The rule was based on proposals by the American Bar Association and the Conference of Chief Justices, as well as rules adopted in other jurisdictions.
Rule of Professional Conduct 5.5 and Admission to Practice Rule 3.3 were amended Oct. 1 to provide more specific standards for the pro hac vice admission of foreign lawyers. In addition, Admission to Practice Rules 2, 3, 6.1, 7, 11, and 12 were amended to provide clarity about the admission to practice process.