TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 18.1. The Presence Warning
Requirement. No defendant shall be tried in absentia by reason of a failure to appear unless the defendant has previously been given the warning prescribed by this rule, as 6 R. Stat. § 131.501(c) requires. The warning is known as the presence warning.
Contents. The presence warning shall inform the defendant:
of the date, time, and place fixed for trial, or of the manner in which that date will be set;
of the right to be present at every stage of trial; and
that, if the defendant fails to appear, the trial may proceed and a verdict, a finding, a judgment, and a sentence may be rendered in the defendant’s absence.
Additional Advice. The warning shall further inform the defendant that a failure to appear may result in the entry of a criminal default and the issuance of a default warrant under Rule 18.2, in proceedings to declare the defendant a fugitive from justice under Rule 33, and in prosecution under R.C.C. § 1.12; that a defendant tried in absentia is represented at every stage by counsel; that the defendant’s absence does not waive the right to appeal or to seek post-conviction relief; and that the defendant is under a continuing obligation, imposed by this rule upon every defendant and additionally by Rule 7.1(5)(b) where that condition is imposed, to remain a participant in the proceeding communications of the case and to report any change of the defendant’s username to the clerk within twenty-four (24) hours.
Form and Manner. The presence warning shall be given either upon the record in open court, the defendant being present, or by a signed writing acknowledged by the defendant. It shall be given in the form the Chief Justice prescribes by order under 6 R. Stat. § 131.501(e)(1)(A).
When Given. The court shall cause the presence warning to be given:
at arraignment, as Rule 7(2)(b)(ix) requires;
in every summons issued under Rule 6, as Rule 6(2)(b) requires;
in every order fixing, advancing, or continuing a trial date or a trial assignment date, and at the conclusion of every pretrial event at which such a date is fixed;
upon the imposition of any condition of release under Rule 7.1(5);
upon the release of a defendant from pre-trial detention under Rule 7.1(4); and
upon the withdrawal or substitution of counsel under Rule 7(3)(c).
Record. The clerk shall enter upon the docket the fact of each presence warning, the date and time it was given in Coordinated Universal Time, the manner in which it was given, and, where given in writing, the Bates number of the filing carrying it. The docket entry is prima facie evidence that the warning was given in the manner recorded. Whether the defendant received the warning is found by the court under Rule 18.3(e)(1), as 6 R. Stat. § 131.501(d)(1) requires.
Warning Where the Defendant Appears by Counsel. Where a defendant is excused from a proceeding under Rule 18(e) or is otherwise absent from a proceeding at which a trial date is fixed, the court shall direct counsel to communicate the presence warning to the defendant and to certify upon the record, within twenty-four (24) hours, the time and manner of the communication. A certificate so filed satisfies subdivision (a) only where the court finds upon the record that the defendant in fact received the warning.
Effect of a Failure to Warn. Where the presence warning has not been given, the court shall not proceed under Rule 18.3, and shall instead cause the warning to be given and fix a new date for the proceeding. A failure to warn is a ground to vacate a judgment entered in absentia under Rule 18.5(e)(2).
Curative Warning. Where a case is pending and the presence warning has not been given, the court on its own initiative shall cause it to be given at the next proceeding, or shall direct the clerk to transmit it to the defendant’s account of record and to counsel. A warning transmitted by the clerk, and a warning carried in a summons under Rule 6(2)(b) which the defendant has not acknowledged, are steps toward compliance. Such a warning satisfies 6 R. Stat. § 131.501(c) and subdivision (1) of this rule where the defendant thereafter acknowledges it by a signed writing, is warned upon the record in open court, or appears in the proceeding in response to it; and in every other case only where the court finds upon the record, under Rule 18.3(e)(1), that the defendant in fact received it. No lapse of time after transmission of itself operates as receipt of the warning.