TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 11. Pretrial Conference and Pretrial Hearing
The Pretrial Conference. At arraignment, except on a complaint regarding which the court will not exercise final jurisdiction, the court shall order the prosecuting attorney and defense counsel to attend a pretrial conference on a date certain to consider such matters as will promote a fair and expeditious disposition of the case. The defendant shall be available for attendance at the pretrial conference. The court may require the conference to be held at court under the supervision of a judge or magistrate.
Attendance. The prosecuting attorney assigned to the case and the attorney who will try the case for the defendant shall attend. A defendant who has waived counsel under Rule 8.1 shall attend personally. Attendance by an attorney who has not entered an appearance in the case does not satisfy this subdivision.
Conduct. Unless the court orders otherwise, the pretrial conference shall be conducted in the proceeding communications of the case. The conference is not a hearing; no evidence is taken and no ruling is made.
Subjects. Among the issues to be discussed at the pretrial conference are:
Discovery and all other matters which, absent agreement of the parties, must be raised by pretrial motion. All motions which cannot be agreed upon shall be filed pursuant to Rule 13(d).
Whether the case can be disposed of without a trial.
If the case is to be tried, (i) the setting of a proposed trial date which shall be subject to the approval of the court and which when fixed by the court shall not be changed without express permission of the court; (ii) the probable length of trial; (iii) the availability of necessary witnesses; and (iv) whether issues of fact can be resolved by stipulation.
Any stipulation the parties are prepared to make under Rule 23, and any request for the preservation of evidence.
Whether the defendant is in custody, and the effect of the period prescribed by 6 R. Stat. § 131.203 upon the proposed schedule.
Whether any charge is one upon which a jury may be demanded under 6 R. Stat. § 131.111.
The Pretrial Conference Report. The parties shall prepare a pretrial conference report which shall state: the discovery each party has provided and the discovery each party demands; each matter agreed upon; each matter not agreed upon and the pre-trial motions each party intends to file; each stipulation offered; the proposed trial date and probable length of trial; the names of the witnesses each party expects to call; and whether the defendant is in custody. The report shall be signed by the prosecuting attorney and by defense counsel and shall be filed under Rule 11(b)(2)(A). A party’s disagreement, stated in the report, does not waive the position of any party.
The Pretrial Hearing. At arraignment, except on a complaint regarding which the court will not exercise final jurisdiction, the court shall order the prosecuting attorney and defense counsel to appear before the court on a date certain for a pretrial hearing. The defendant shall be available for attendance at the hearing. The pretrial hearing may include the following events:
Tender of Plea. The defendant may tender a plea, admission or other requested disposition, with or without the agreement of the prosecutor. A plea tendered at the pretrial hearing shall be received in accordance with Rule 12.
Pretrial Matters. Unless the court declines jurisdiction over the case or disposes of the case at the pretrial hearing, the pretrial hearing shall include the following events:
Filing of Pretrial Conference Report. The prosecuting attorney and defense counsel shall file the pretrial conference report with the clerk of court.
Discovery and Pretrial Motions. The court shall hear all discovery motions pending at the time of the pretrial hearing. Other pending pretrial motions may be heard at the pretrial hearing, continued to a specified date for a hearing, or transmitted for hearing and resolution by the trial session.
Compliance and Trial Assignment. The court shall determine whether all discovery matters have been resolved, and compliance with all discovery orders has been accomplished. If so, the court shall assign a trial date or trial assignment date. If completion of discovery is still pending, the court shall schedule and order the parties to appear for a compliance hearing pursuant to Rule 11(c) unless the aggrieved party waives the right to a compliance hearing.
The court may issue such additional orders as will promote the fair, speedy and orderly disposition of the case.
Presence of the Defendant. The defendant shall be present at the pretrial hearing except as provided by Rule 18. No plea shall be received in the defendant’s absence; a defendant attending in the manner Rule 18(a)(2) describes is present for this purpose. Rule 12(1)(a).
Conduct; Record. The pretrial hearing shall be conducted in the proceeding communications of the case, which for this purpose constitute open court, and shall be maintained upon the record. Rulings announced upon the record are effective when announced; a written order confirming a ruling does not alter its effective time.
Failure to Appear. If the defendant fails to appear at the pretrial hearing after notice, the court may enter a criminal default and issue a default warrant under Rule 18.2, may authorize the issuance of a warrant under Rule 6(1)(b), and may proceed under Rule 18.3. Counsel who fails without cause to appear is subject to sanction under Rule 48.
Compliance Hearing. A compliance hearing ordered pursuant to Rule 11(b)(2)(C) shall be limited to the following court actions:
determining whether discovery is complete and, if necessary, hearing and deciding discovery motions and ordering appropriate sanctions for non-compliance;
receiving and acting on a tender of plea or admission; and
if discovery is complete, scheduling the trial date or trial assignment date.
Waiver. The aggrieved party may waive the compliance hearing in writing or upon the record. A waiver does not waive any pending discovery motion or any sanction available under Rule 14(c).
Successive Hearings. The judge may order successive compliance hearings, but shall state upon the record the reason for each and its effect upon the period prescribed by Rule 46(a) and upon Rule 19.
Trial Assignment; Date Certain. A trial date or trial assignment date fixed under this rule is a date certain. It shall not be changed except by a continuance granted under Rule 10 or upon the express permission of the court stated upon the record. The assignment of a trial date closes the period for filing non-discovery pretrial motions as provided by Rule 13(d)(2).
Orders; Filing. Orders entered under this rule shall be entered in the case through the electronic filing system and are effective upon entry. Neither the electronic filing system nor the Clerk computes, tracks, or gives notice of any date fixed under this rule; compliance is the obligation of the parties and is policed by motion.
Relation to Rule 46. The pretrial conference, the pretrial hearing, and any compliance hearing shall be scheduled to occur within the seventy-two hour period prescribed by Rule 46(a), unless that period has been enlarged under Rule 46(b) or Rule 10(d)(1).
Relation to a Preliminary Hearing. Where a preliminary hearing has been scheduled under Rule 7(2)(e) and Rule 7.2, the pretrial conference and the pretrial hearing shall be scheduled to follow it, and the period prescribed by Rule 46(a) may be enlarged under Rule 46(b) so far as is necessary to allow the preliminary hearing to be held. A preliminary hearing is neither a pretrial conference nor a pretrial hearing, and the holding of one does not dispense with either.
Where a Count Is Discharged. Where every count is discharged at a preliminary hearing, the pretrial conference and the pretrial hearing are vacated. Where some counts are bound over and others discharged, they proceed as to the counts bound over.
Waiver of the Pretrial Hearing. Upon the joint written motion of the parties, and where the defendant intends to tender a plea under Rule 12, the judge may dispense with the pretrial conference or advance the pretrial hearing. The judge shall not dispense with the pre-trial hearing itself where any pretrial motion is pending or where discovery is incomplete.