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 .