[TITLE
II - LAW AND ORDER CODE - SUBPART C] - CRIMINAL PROCEDURE
Section
1. Scope, Purpose and Construction
(a)
This Title governs the procedure in all criminal proceedings in the
Tribal District Court and all preliminary or Supplementary procedures
as specified herein.
(b)
Every proceeding in which a person is charged with a criminal offense
of any degree and brought to trial and punished is a criminal proceeding.
(c)
This Title is intended to provide for the just determination of every
criminal proceeding. It shall be construed to secure simplicity in procedure,
fairness in administration of justice and the elimination of unjustifiable
expense and delay.
(d)
In any case wherein no particular procedure is provided herein, resort
shall be had to the Civil Procedure Act or other applicable Tribal law
subject always to the rights of the defendant. If no procedure is provided
in either this Title, the Civil Procedure Act, or other Tribal law,
the Court may proceed in any lawful fashion while protecting the rights
of the defendant.
CHAPTER
ONE - PRELIMINARY PROVISIONS
Section 101. Prosecution of Offenses
(a) No
person shall be punished for an offense except upon a legal conviction,
including a plea or admission of guilt or nolo contendere in open
court, by a court of competent jurisdiction, provided, however, that
no incarceration or other disposition of one accused of an offense
prior to trial in accordance with this Title shall be deemed punishment.
(b) All
criminal proceedings shall be prosecuted in the name of the Tribes
as Plaintiff, against the person charged with an offense, referred
to as the Defendant.
(c) The
case number prefix assigned to criminal actions shall be sufficient
different and unique from the prefix assigned to other types of cases
to clearly distinguish them.
Section 102. Rights of Defendant
In all
criminal proceedings, the Defendant shall have the following rights:
(a) To
appear and defend in person or by counsel except:
(1)
Trial of traffic or hunting and fishing offenses not resulting in
injury to any person, nor committed while using alcohol or non-prescription
drugs may be prosecuted without the presence of the Defendant upon
a showing that the defendant received actual notice five (5) days
prior to the proceeding, if no imprisonment is ordered, and any
fine imposed does not exceed fifty dollars ($50.00)
(2)
The Defendant may represent himself or be represented by an adult
enrolled Tribal member with leave of the Court, if such representation
is without charge to the defendant, or by any attorney or advocate
admitted to practice before the Tribal Court, but no Defendant shall
have the right to have appointed professional counsel provided at
the Tribes expense. However, the privilege to have counsel appointed
may be granted by the Court or any Tribal law as may be provided
in the rules of the Court relating to attorneys and lay advocates.
(b) To
be informed of the nature of the charges against him and to have a
written copy thereof;
(c) To
testify in his own behalf, or to refuse to testify regarding the charge
against him, provided, however, that once a defendant takes the stand
to testify on any matter relevant to the immediate proceeding against
him, he shall be deemed to have waived all right to refuse to testify
in that immediate criminal proceeding. He shall not, however, be deemed
to have waived his right to remain silent in other distinct phases
of the criminal trial process.
(d) To
confront and cross examine all witnesses against him, subject to the
Evidence Code.
(e) To
compel by subpoena the attendance of witnesses in his own behalf;
(f) To
have a speedy public trial by an impartial judge or jury as provided
in this Title;
(g) To
appeal in all cases;
(h) To
prevent his present or former spouse from testifying against him concerning
any matter which occurred during such marriage, except;
(1)
In any case in which the offense charged is alleged to have been
committed against the spouse or the immediate family, or the children
of either the spouse or the defendant, or against the marital relationship;
(2)
Any testimony by the spouse in the defendant's behalf will be deemed
a waiver of this privilege.
(i) Not
to be twice put in jeopardy by the Tribes for the same offense.
Section 103. Limitation of Prosecution
(a) Every
criminal proceeding except an offense for which banishment is a possible
punishment shall be commenced within three (3) years of the date of
commission and diligent discovery of the offense, or prosecution for
that offense shall be forever barred. Every criminal offense for which
banishment is a possible punishment shall be commenced within seven
(7) years of the date of commission and diligent discovery of the
offense, or prosecution for that offense shall be forever barred.
(b) If
an offense is committed by actions occurring on two (2) or more separate
days, the offense will be deemed to have been committed on the day
the final act causing the offense to be complete occurred.
(c) The
date of "diligent discovery" is the date at which, in the exercise
of reasonable diligence, some person other than the defendant and
his coconspirator(s) know or should have known that an offense had
been committed.
(d) Time
spent outside the jurisdiction of the Tribes for the purpose of avoiding
prosecution shall not be counted toward the limitation period to begin
prosecution.
Section 104. No Common Law Offenses
No act
or failure to act shall be subject to criminal prosecution unless made
an offense by some statute of the Tribes.
CHAPTER TWO - PROCEEDINGS BEFORE TRIAL
Section 201. The Complaint
(a) Complaint.
Every criminal proceeding shall be commenced by the filing of a criminal
complaint. The complaint is a sworn written statement of the essential
facts charging that a named individual(s) has committed a particular
offense.
(b) Contents
of Complaint. The complaint shall contain:
(1)
The name and address of the court:
(2)
The name of the defendant; if known or some other name if not known
plus whatever description of the defendant is known;
(3)
The signature of the Tribal Attorney General or his Assistant; and
his typewritten name.
(4)
A written statement describing in ordinary and plain language the
facts of the offense alleged to have been committed including a
reference to the time, date, and place as nearly as may be known.
The offense may be alleged in the language of the statute violated
(5)
The person against whom or against whose property the offense was
committed and the names of the witnesses of the Tribes if known,
otherwise no statement need be made;
(6)
The general name and Tribal code title and section number of the
alleged offense.
(7)
If the offense(s) is punishable by banishment, the Attorney General
may state in the complaint or an amendment of the complaint that
banishment will be recommended as a punishment if the defendant
is convicted. If such statement is not made banishment may not be
imposed.
(c) Error.
No minor omission from or error in the form of the complaint shall
be grounds for dismissal of the case unless some significant prejudice
against the defendant can be shown to result therefrom.
(d) Time
of filing complaint. A complaint may be filed at any time within
the period prescribed by Section 103 of this Title, provided,
that if an accused has been arrested without a warrant the complaint
shall be filed promptly and in no case later than the time of arraignment.
Section 202. Arrest Warrant or Summons to Appear
(a) If
it appears from the complaint that an offense has been charged against
the defendant, a judge of the Tribal Court shall issue a summons to
the defendant to bring him before the court. An arrest warrant shall
issue only upon a complaint charging an offense by the defendant against
the law of the Tribes supported by the recorded ex parte testimony
or affidavit of some person having knowledge of the facts of the case
through which the judge can determine that probable cause exists to
believe that an offense has been committed and that the defendant
committed it.
(b) Issuance
of Arrest Warrants or Summons. Unless the Tribal Judge has reasonable
grounds to believe that the person will not appear on a summons, or
unless the complaint charges an offense which is punishable by banishment,
a summons shall be issued instead of an arrest warrant.
(c) Contents
of Arrest Warrants. The warrant of arrest shall be signed by the
Judge issuing it, and shall contain the name and address of the Court;
the name of the defendant, or if the correct name is unknown, any
name by which the defendant is known and the defendant's description;
and, a description of the offense charged with a reference to the
Section of the Tribal Code alleged to have been violated. It shall
order and command the defendant be arrested and brought before a Judge
of the Tribal Court to enter a plea. When two or more charges are
made against the same person only one warrant shall be necessary to
commit him to trial.
(d) Contents
of Summons. A criminal summons shall contain the same information
as an arrest warrant except, that instead of commanding the arrest
of the accused, it shall order the defendant to appear before a Tribal
Judge within five (5) days or on some certain day to enter a plea
to the charge, and a notice that upon the defendant's failure to appear
an arrest warrant shall issue and that the defendant may be further
charged with disobeying a lawful order of the court. If the defendant
fails to appear in response to a summons or refuses to accept the
summons an arrest warrant shall issue.
(e) Service
of Arrest Warrants and Summons.
(1)
Warrants for Arrest and Criminal Summons may be served by any Tribal
or Federal law enforcement officer or any adult person authorized
in writing by the Tribal Judge. Service may be made at any place
within the jurisdiction of the Tribes.
(2)
Warrants of Arrest and Summons are to be served at a person's home
only between the hours of 7:00 am and 9:00 pm, unless an authorization
to serve such process at night is placed on the face thereof by
a Tribal Judge.
(3)
The date, time, and place of service or arrest shall be written
on the warrant or summons along with the signature of the person
serving such, and the warrant returned to the Court. A copy, so
signed, shall be given to the person served or arrested at the time
of arrest if reasonably possible, or as soon thereafter as is reasonable
possible.
(4)
An officer need not have the warrant in his possession at the time
of arrest, but if not, he shall inform the defendant of the charge,
that a warrant of arrest has been issued and shall provide the defendant
a copy of the warrant not later than the time of arraignment.
Section 203. Criminal Citations
(a) Whenever
a law enforcement officer would be empowered to make an arrest without
a warrant for an offense not punishable by banishment but has reasonable
grounds to believe an immediate arrest is not necessary to preserve
the public peace and safety, he may, in his discretion, issue the
defendant a citation instead of taking said person into custody. Such
citation, signed by the law enforcement officer, shall be considered
a court order, and may be filed in the action in lieu of a formal
complaint, unless the Court orders that a formal complaint be filed.
(b) Contents
of Citation.
(1)
The citation shall contain the name and address of the Court, the
name or alias and description of the defendant, a description of
the offense charged, and the signature of the law enforcement officer
who issued the citation.
(2)
The citation shall contain an agreement by the defendant to appear
before a Tribal Judge within five (5) days or on a day certain to
answer to the charge, and the signature of the defendant.
(3)
The citation shall contain a notice that upon defendant's failure
to appear, an arrest warrant shall issue and that the defendant
may be further charged with disobeying a lawful order of the court.
(4)
One (1) copy of the citation shall be given to the defendant and
two (2) copies shall be delivered to the Attorney General.
Section 204. Arraignment
(a) Arraignment
Defined. Arraignment is the bringing of an accused person before
the Court, informing him of the charge against him and of his rights,
receiving his plea and setting bail. Arraignment shall be held in
open court upon the appearance of an accused in response to a Criminal
Summons or Citation or, if the accused was arrested and confined,
within seventy-two (72) hours of the arrest, Saturdays, Sundays and
legal holidays excepted.
(b) Procedure
at Arraignment. Arraignments shall be conducted in the following
order:
(1)
The Judge or Magistrate should request the Attorney General to read
the charges.
(2)
The Attorney General should read the entire complaint, deliver a
copy to the defendant unless he has previously received a copy thereof,
and state the minimum and maximum authorized penalties.
(3)
The Judge or Magistrate should determine that the accused understands
the charge against him and explain to the defendant that he has
the following rights:
(i)
the right to remain silent.
(ii)
to be tried by a jury upon request.
(iii)
to consult with an attorney at his own expense and that if he
desires to consult with an attorney the arraignment will be postponed.
(4)
The Judge or Magistrate shall ask the defendant if he wishes to
obtain counsel and, if the defendant so desires, he will be given
a reasonable time to obtain counsel. If the defendant shows his
indigency and counsel is available for appointment under the rules
relating to attorneys, counsel may be appointed. If the defendant
is allowed time to obtain or consult with counsel, he shall not
be required to enter an plea until the date set for his appearance.
(5)
The Judge or Magistrate should then ask the defendant whether he
wishes to plead "guilty", "nolo contendere", or "not guilty".
(c) Receipt
of Plea at Arraignment. The defendant shall plead "guilty, "nolo
contendere", or "not guilty" to the offense charged.
(1)
If the defendant refuses to plead', the Judge shall enter a plea
of "not guilty" for him.
(2)
If the defendant pleads "not guilty", the Judge shall set a trial
date and conditions for bail prior to trial.
(3)
If the defendant pleads "nolo contendere" or "guilty" the Judge
shall question the defendant personally to determine that he understands
the nature of his action, the rights that he is waiving, and that
his action is voluntary. The Judge may refuse to accept a guilty
plea and enter a plea of "not guilty" for him. If the guilty plea
is accepted, the Judge may immediately sentence the defendant or
order a sentencing hearing.
Section 205. Commitments
No person
shall be detained or jailed for a period longer than seventy- two (72)
hours, Saturdays, Sundays, and legal holidays excepted, unless a commitment
bearing the signature of a Judge or Magistrate of the Tribal Court has
been issued.
(a) A
temporary commitment shall be issued pending investigation of charges
or trial.
(b) A
final commitment shall be issued for those persons incarcerated as
a result of a judgment and sentence of the Tribal Court.
Section 206. Joinder
(a) Joinder
of Offenses. Two or more offenses may be charged in one complaint
so long as they are set out in separate counts and:
(1)
They are part of a common scheme or plan, or
(2)
They arose out of the same transaction.
(b) Joinder
of Defendants. Two or more defendants may be joined in one complaint
if they are alleged to have participated in a common act, scheme,
or plan to commit one or more offenses. Each defendant need not be
charged in each count.
Section 207. Pleas
(a) A
defendant may plead guilty, nolo contendere, or not guilty, the Court
shall not accept a plea of guilty or nolo contendere without first
addressing the defendant personally and determining that the plea
is made voluntarily with understanding of the nature of the charge
and the consequences of the plea. If the defendant refuses to plead
or if the Court refuses to accept a plea of guilty, or nolo contendere,
the Court shall enter a plea of not guilty. The Court shall not enter
a judgment upon a plea of guilty or nolo contendere unless it is satisfied
that there is a factual basis for the plea.
(b) The
defendant, with the consent of the Court and of the prosecuting attorney,
may plead guilty to any lesser offense than that charged which is
included in the offense charged in the complaint or to any lesser
degree of the offense charged.
Section 208. Withdrawing Guilty Plea
A motion
to withdraw a plea of guilty may be made only before a sentence is imposed,
deferred, or suspended, except that the Court may allow a guilty plea
to be withdrawn to correct a manifest injustice.
Section 209. Plea Bargaining
Whenever
the defendant plead guilty as a result of a plea arrangement with the
Attorney General, the full terms of such agreement shall be disclosed
to the Judge. The Judge in his discretion, is not required to honor
such agreement. In the event that the Judge decides not to honor such
agreement, he should offer the defendant on opportunity to withdraw
his plea and proceed to trial.
Section 210. Pleading and Motions Before Trial: Defenses and Objections
(a) Pleadings
in criminal proceedings shall consist of the complaint or citation
and the plea of either guilty, nolo contendere, or not guilty. All
other pleas and motions shall be made in accordance with this Title.
(b) Motions
raising defenses and objections may be made as follows:
(1)
Any defenses or objections which are capable of determination other
than at trial may be raised before trial by motion.
(2)
Defenses and objections based on defects in the institution of the
prosecution of the complaint other than that it fails to show jurisdiction
in the Court or fails to charge an offense may be raised on motion
only before trial or such shall be deemed waived, unless the Court
for good cause shown grants relief from such waiver. Lack of jurisdiction
or failure to charge an offense may be raised as a defense or noticed
by the Court on its own motion at any stage of the proceeding.
(3)
Such motions shall be made in writing and filed with the Court at
least five (5) business days before the day set for trial. Such
motions will be argued before the Court on the date of trial unless
the Court directs otherwise. Decision on such motions shall be made
by the judge and not by the jury.
(4)
If a motion is decided against a defendant, the trial shall proceed
as if no motion were made. If a motion is decided in favor of a
defendant, the judge shall alter the proceedings, allow an interlocutory
appeal to be taken as provided in the Appellate Rules, or enter
judgment as is appropriate in light of the decision.
Section 211. Concurrent Trial of Defendants or Charges
(a) The
Court may order two or more defendants tried together if they could
have been joined in a single complaint, or may order a single defendant
tried on more than one complaint at a single trial.
(b) If
it appears that a defendant or the Tribes are prejudiced by a joinder
of offenses or other defendants for trial, the court may order separate
complaints and may order separate trials or provide such other relief
as justice requires. In ruling on a motion for severance, the Court
may order the Tribes to deliver to the Court for inspection in chambers,
any statements made by a defendant which the Tribes intend to introduce
in evidence at the trial.
Section 212. Discovery and Inspection
(a) The
police, or Attorney General, shall, upon request, permit the defendant
or his attorney to inspect and copy any statements or confessions,
or copies thereof, made by the defendant if such are within the possession
or control of or reasonably obtainable by the police or prosecution.
The police and prosecution shall make similarly available copies of
reports of physical, mental or scientific test or examinations relating
to or done on the defendant.
(b) The
defendant or his attorney shall reveal by written notice to the Court
and the Attorney General at least five (5) working days before trial
the names and addresses of any witnesses upon whom the defense intends
to rely to provide an alibi or insanity defense for the defendant.
Failure to provide such notice will prevent the use of such witnesses
by the defense unless it can be shown by the defense that prior notice
was impossible or that no prejudice to the prosecution has resulted,
in which case the judge may order the trial delayed or make such other
orders as tend to assure a just determination of the case.
Section 213. Subpoena
(a) The
defendant and the Attorney General shall have the right to subpoena
any witnesses they deem necessary for the presentation of their case,
including subpoenas issued in blank. Subpoenas in criminal cases shall
be issued, served and returned as in civil cases.
(b) A
subpoena may be served any place within the jurisdiction of the Tribal
Court, and as provided for service in civil cases.
(c) Failure,
without adequate excuse, to obey a properly served subpoena may be
deemed a contempt of court, and prosecution thereof may proceed upon
the order of the Court. No contempt shall be prosecuted unless a return
of service of the subpoena has been made on which is endorsed the
date, time and place of service and the person performing such service.
CHAPTER THREE - TRIAL
Section 301. Trial By Jury or By the Court
(a) All
trials of offenses shall be by the Court without a jury unless the
defendant files a request for a jury trial and a One Hundred Dollar
($100.00) jury fee not less than ten business days prior to the date
set for trial. A judge may in his discretion waive the jury fee if
the defendant shows that he is without sufficient funds to pay the
jury fee.
(b) Juries
shall be composed of six (6) members with one alternate if an alternate
jurors is deemed advisable by the Court.
(c) In
a case tried without a jury, the judge shall make a general finding
of guilt or innocence and shall, upon request of any party, make specific
findings which may be embodied in a written decision.
Section 302. Trial Jurors
(a) Jurors
shall be drawn from the list of eligible jurors, prepared as provided
in the Civil Procedure Act.
(b) The
Court shall permit the defendant or his counsel and the Attorney General
to examine the jurors and the Court itself may make such a examination.
(c) Challenges
regarding jury members may be taken as follows:
(1)
Each side shall be entitled to three (3) peremptory challenges.
(2)
Either side may challenge any juror for cause;
(3)
An alternate juror shall be treated as a regular juror for purpose
of challenges.
(d) The
alternate juror shall be dismissed prior to the jury's retiring to
deliberation if he has not first been called to replace on original
juror who has become, for any reason, unable or disqualified to serve.
(e) Jurors
shall otherwise be subject to all rules applicable to juries in civil
cases.
Section 303. Order of Trial
The trial
of all criminal offenses shall be conducted in the following manner:
(a) The
Court shall call the case name and number and ask the parties if they
are ready to proceed. If the parties are not ready, the Court may
continue the case or direct the case to proceed in its discretion.
(b) If
the parties are ready to proceed, and if the case is to be tried by
jury, the Judge should require all prospective jurors to swear to
decide the case in a fair and impartial manner if selected for jury
duty.
(c) If
the case is to a jury, the Court should select a potential jury panel
as selected under the Civil Procedure Act by random and question them
to determine if they have any interest in the case.
(d) When
the Court is satisfied that no juror should be dismissed for statutory
cause, the prosecution and then the defendant shall be allowed to
question the prospective jurors. The Court may delay any examination
it wishes to make until after the parties have examined the jury panel.
(e) If
it appears that a prospective juror is related to a party in the case
or is biased for or against a party, or if the outcome would significantly
affect the property, family, or other important interest of the prospective
juror, the Court shall dismiss him for cause and select another person
from the jury panel.
(f) Both
the Attorney General and the defendant may alternatively request the
Court to dismiss any juror by peremptory challenge. Each party shall
have three (3) peremptory challenges and the Court may not refuse
to grant them. No reasons need be given for the challenges and alternate
jurors shall be examined and selected as the original panel was selected.
The final jury panel should then be sworn.
(g) The
Court should request the Attorney General to read the criminal complaint
and to make his opening statement. Prior to reading the complaint,
the Court should explain to the jury that the complaint is not evidence,
but is being read for the sole purpose of informing the defendant
and the jury of the offense charged against the defendant. The Court
should also inform the jury that the statements of counsel are not
evidence but are presented so that the jury will have an opportunity
to hear what counsel for each party expects the evidence to show.
(h) The
Attorney General should then read the complaint and briefly present
the facts which he intends to prove to show the offense. No argument
of the facts or law shall be allowed. In reading the complaint, no
reference to any recommendation for banishment may be made prior to
the verdict of guilty or not guilty.
(i) The
defense may then made an opening statement or may reserve their opening
statement until the beginning of the presentation of the defense evidence.
(j) The
Attorney General shall then present his evidence followed by the defendant's
presentation of his defense evidence. After the defendant has presented
his evidence, the Attorney General may present evidence in rebuttal.
(k) The
Attorney General shall then present his closing argument, the defendant
his closing argument, and the Attorney General shall be allowed to
present a rebuttal.
(l) If
trial is to a jury, the Judge should give them his instructions and
they shall retire to decide their verdict. If trial is to the Judge,
he shall then make his decision or announce the time at which he will
present his decision.
(m) If
the verdict is "not guilty", the defendant should be discharged and
bail exonerated.
(n) If
the verdict is "guilty", the judge may impose sentence immediately
or may hold a hearing at a later time or date to decide on an appropriate
sentence. In a case tried before a jury, the Court, after receiving
a verdict of "guilty", shall inform the jury if banishment has been
recommended as a punishment of the offense. The prosecution and the
defense shall then be given an opportunity to present any additional
evidence they may wish to present on the issue of whether banishment
should be imposed, and the prosecution shall be given the final opportunity
to rebut any defense evidence. The jury should then be requested to
retire and consider whether banishment should be imposed and the maximum
term thereof. No banishment shall be imposed in excess of the term
recommended by a unanimous vote of the jury,although a recommendation
that banishment be imposed is not binding on the Judge.
(o) After
sentencing the Judge may hold a hearing to determine appeal bond if
an appeal is filed.
Section 304. Trial By Judicial Panel
(a) In
every trial for an offense or offenses punishable by imprisonment
for more than three months in which a jury trial is not requested,
the Judge may, in his discretion, upon request of the defense or prosecution,
order the matter to be heard by a three (3) Judge panel.
(b) In
every trial for an offense or offenses punishable by banishment in
which a jury trial is not requested, and in which the Attorney General
shall recommend in the complaint that banishment be imposed upon conviction,
the Court shall order the case to be heard before a three (3) Judge
panel. If no recommendation for banishment is made in the complaint,
or an amendment thereof, banishment may not be imposed.
(c) The
Chief Judge shall assign three (3) Judges to sit on the judicial panel
for trial, one of whom shall be designated as the presiding Judge
for that trial. Those Judges shall be subject to disqualification
only for good cause shown.
(d) The
presiding Judge in such cases shall rule on all motions, objections,
and procedural questions, however, the judgment of conviction or acquittal
shall be by majority vote. In cases in which banishment has been recommended,
banishment may not be imposed unless there is a unanimous finding
of guilt by the judicial panel and a unanimous agreement by the panel
that banishment is a proper sentence and the term of banishment must
be agreed upon by the judicial panel. The actual vote of each Judge
shall be held in strict confidence and only the actual decision shall
be announced.
Section 305. Judge Disability
(a) If
by reason of death, sickness or other disability, the Judge before
whom a jury trial has commenced is unable to proceed with the trial,
any other Tribal Judge may, upon certifying that he has familiarized
himself with the record of the trial, proceed with the trial.
(b) If
by reason of death, sickness or other disability, the Judge before
whom the defendant has been tried is unable to perform the required
duties of a Judge after the verdict or finding of guilt, any other
Tribal Judge may perform those duties unless such Judge feels he cannot
fairly perform those duties in which case a new trial may be granted.
A new trial shall not be granted if all that remains to be done is
the sentencing of a defendant.
Section 306. Evidence
The admissibility
of evidence and the competence and privileges of witnesses shall be
governed by the Evidence Code of the Tribes, except as herein otherwise
provided.
Section 307. Expert Witnesses and Interpreters
(a) Either
party may call expert witnesses of their own selection and each bear
the cost of such.
(b) The
Court may appoint an interpreter of its own selection and each party
may provide their own interpreters. An interpreter through whom testimony
is received from a defendant or witness or communicated to a defendant
or other witness shall be put under oath to faithfully and accurately
translate and communicate as required by the Court.
(c) The
trial Judge or Clerk may act as interpreter only with the consent
of all parties.
Section 308. Motion for Judgment of Acquittal
(a) The
Court on motion from defendant or on its own motion, shall order the
entry of a judgment of acquittal of one or more offenses charged in
the complaint after the evidence of either side is closed if the evidence
is insufficient as a matter of law to sustain a conviction of such
offenses. A motion for acquittal by the defendant does not affect
his right to present evidence.
(b) If
a motion for judgment of acquittal is made at the close of all the
evidence, the Court may reserve decision on the motion, submit the
case to the jury and decide the motion any time either before or after
the jury returns its verdict or is discharged.
Section 309. Instructions
At the
close of evidence or at such earlier time during the trial as the Court
reasonably directs, any party may file written requests that the Court
instruct the jury on the law as set forth in the request. At the same
time, copies of such requests shall be furnished to adverse parties.
The Court shall inform counsel of its proposed action upon the requests
prior to the arguments of counsel to the jury, but the Court shall instruct
the jury after the arguments are completed. No party may assign as error
any portion of the charge or omission therefrom unless he objects thereto
before the jury retires to consider its verdict, stating distinctly
the matter to which he objects and the grounds of the objection. Opportunity
shall be given out of the hearing and out of the presence of the jury.
Section 310. Verdict
(a) Except
as hereinbefore provided in cases where banishment is recommended,
the verdict of a trial to a judicial panel shall be by majority vote
and shall be returned in open court.
(b) The
verdict of a jury shall be unanimous. It shall be returned by the
jury to the judge in open court. If the jury is unable to agree, the
jury may be discharged and the defendant tried against before a new
jury.
(c) If
there are multiple defendants or charges, the jury may at any time
return its verdict as to any defendants or charges to which it has
agreed and continue to deliberate on the others.
(d) If
the evidence is found to support such verdict, the defendant may be
found guilty of a lesser included offense or attempt to commit the
crime charged or a lesser included offense without having been formally
charged with the lesser included offense or attempt.
(e) Upon
return of the verdict, the jury may be polled at the request of either
party. If upon the poll there is not unanimous concurrence, the jury
may be directed to retire for further deliberation or may be discharged.
(f) After
return of the verdict, the jury may, in the Judge's discretion, be
requested to recommend the punishment to be imposed after a hearing
at which both parties have the opportunity to present evidence in
mitigation or aggravation of the sentence. The jury's recommendation
in such cases shall not be binding on the judge at sentencing except
as otherwise provided in the case of sentences of banishment.
CHAPTER FOUR - JUDGMENT AND SENTENCE
Section 401. Judgment
A judgment
of conviction shall set forth in writing the charge, plea, verdict or
findings, and the sentence imposed. If the defendant is found not guilty
or is otherwise entitled to be released, judgment shall be entered accordingly.
The judgment shall be signed by the Judge and entered by the Clerk.
Section 402. Sentence
Sentence
shall be set forth as follows:
(a) Sentence
shall be imposed without unreasonable delay in accordance with the
provisions of the criminal statute or ordinance violated, and this
Title. Pending sentence the Court may commit the defendant to jail
or continue or alter the bail. Before imposing sentence, the Court
shall allow counsel an opportunity to speak on behalf of the defendant
and shall address the defendant personally and ask him if he wishes
to make a statement on his own behalf and to present any information
in mitigation of punishment.
(b) After
imposing sentence, the Court shall inform the defendant of his right
to appeal, and if so requested, shall direct the clerk to file a notice
of appeal on behalf of the Defendant. At any time after a notice of
appeal is filed, the Court may entertain a motion to set bail pending
appeal.
(c) Time
served in jail prior to the judgment and sentence while awaiting or
during trial shall be allowed as a credit toward any sentence of imprisonment
or banishment imposed.
Section 403. General Sentencing Provisions
Statement
of Policy. The sentencing policy of the Tribes in criminal cases
is to strive toward restitution and reconciliation of the offender and
the victim and Tribes. While one goal of sentencing is to impress upon
the wrongdoer the wrong he has committed, the paramount goal is to restore
the victim and Tribes to the position that existed prior to the commitment
of the offense, and to restore the offender to harmony with them and
the community by requiring him to right his wrongdoing. Therefore, with
consideration of these goals in mind, the provisions of this Chapter
shall govern Tribal sentencing for criminal offenses.
(a) Unless
the Court determines that the ends of justice will not be served thereby,
or that a civil action will more adequately adjudicate damages in
the specific ease at hand, then in addition to any sentence otherwise
provided by law the Court shall:
(1)
Order the offender to pay restitution to the victim in money, property,
or services; and/or
(2)
Order the offender to pay restitution to the Tribes in money, property,
or services.
(b) In
effectuating Tribal sentencing policy, if the offender recognizes
the wrong he has committed, and earnestly repents of such wrong, the
Court, paying particular attention to prior offenses, in its discretion
may:
(1)
Allow such offender to exchange actual work performed for the Tribes
in lieu of a fine or imprisonment, at the rate of eight (8) hours
of work per twenty-five dollars ($25.00) of fine; or
(2)
Place the offender on probation under such reasonable conditions
as the Court may direct for a period not exceeding three (3) times
the amount of the maximum sentence allowed; or
(3)
Defer entering the judgment and imposing sentence for a period not
exceeding four (4) times the maximum sentence allowed on condition
that if the defendant violated no law and satisfies such other reasonable
conditions such as restitution as may be imposed, the plea or verdict
guilty will be withdrawn and said charges will be dismissed.
(4)
In the discretion of the Court, allow the offender to pay a fine
in goods or commodities at the fair market value of the goods or
commodities to be surrendered, provided, that the Tribes
shall not reimburse the offender for any excess value of the property
surrendered.
Section 404. Sentence of Banishment
(a) Banishment
Defined. Banishment is the traditional and customary sentence
imposed by the Tribes for offenders who have been convicted of offenses
which violate the basic rights to life, liberty, and property of the
community and whose violation is a gross violation of the peace and
safety of the Tribes requiring the person to be totally expelled for
the protection of the community. During the term of banishment, a
person who is banished from the territory and association of the Tribes
shall:
(1)
Be considered legally dead and a nonentity with no civil rights
to engage in contracts or come before the courts of the Tribes for
any reason not related to the original conviction, provided,
that the banished person retains all rights of a criminal defendant
during any prosecution for an offense during the term of banishment,
and while attending a going directly to or from any Court, or a
proceeding involving a criminal action to which he is a party including
the appeal of his case.
(2)
Be expelled from the jurisdiction of the Tribes and not be allowed
to return for any reason during the period of banishment except
when required to attend court.
(3)
Forfeit all positions or offices of honor or profit with the Tribes.
(4)
Be absolutely ineligible for any service, monies, or benefits provided
by the Tribes, or due as a result of citizenship in the Tribes.
(5)
Be absolutely ineligible to vote in any election conducted by or
hold any office in the Tribes.
(6)
Be grounds for any debtor of the banished person to apply for an
order attaching the banished person's personal property within this
jurisdiction and bringing execution thereon to satisfy the debt.
(b) Violation
of Banishment.
(1)
If the person banished be found within the jurisdiction of the Tribes
not going directly to, attending, or returning from a Court hearing
required in his case, such act shall be considered criminal contempt
in violation of a lawful order of the court and may be punished
accordingly.
(2)
A person under a decree or judgment of banishment found unlawfully
within the jurisdiction of the Tribes shall, upon conviction, and
in addition to any other punishment imposed for disobedience of
a lawful order of the court, forfeit to the Tribes all personal
property brought by him into the jurisdiction of the Tribes or in
his immediate control therein, whether ownership of said property
is in the banished person or another, as civil damages for breach
of the peace and safety of the Tribes.
(c) Expiration
of Banishment Term. Upon expiration of the term of banishment
and satisfaction of any other terms imposed by the sentence, the banished
person shall be restored to all rights forfeited during the banishment
and shall thereafter be treated as if banishment had never been imposed.
Section 405. New Trial
The Court,
on motion of a defendant, may grant a new trial to him if required in
the interest of justice. If trial was by the Court without a jury, the
Court, on motion of a defendant for a new trial, may vacate the judgment,
if entered, take additional testimony, and direct the entry of a new
judgment,. A motion for a new trial based on the ground of newly discovered
evidence may be made only within one month after final judgment, but
if an appeal is pending the Court may grant the motion only on remand
of the case. A motion for a new trial based on any other grounds shall
be made within seven (7) days after verdict or finding of guilty or
within such further time as the Court may fix during the seven day period.
Section 406. Arrest of Judgment
The Court,
on motion of a defendant, shall dismiss the action if the complaint
does not charge an offense or if the Court was without jurisdiction
of the offense charged. The motion in arrest of judgment shall be made
within seven (7) days after verdict or finding of guilty or plea of
guilty, or within such further time as the Court may fix during the
seven day period.
Section 407. Correction or Reduction of Sentence
The Court
may correct an illegal sentence at any time and may correct a sentence
imposed in an illegal manner within thirty days after the sentence is
imposed, or within thirty days after receipt by the Court of a mandate
issued upon affirmance of the judgment or dismissal of the appeal. The
Court may also reduce a sentence upon revocation of probation.
Section 408. Clerical Mistakes
Clerical
mistakes in judgments, orders, or other parts of the record and errors
in the record arising from oversight or omission may be corrected by
the Court at any time and after such notice, if any, as the Court orders.
CHAPTER FIVE - APPEAL
Section 501. Right of Appeal; How Taken
(a) The
defendant has the right to appeal from the following:
(1)
A final judgment of conviction; and the sentence imposed thereon.
(2)
From an order made, after judgment and sentences, affecting his
substantial rights.
(b) The
Tribes have the right to appeal from the following:
(1)
A judgment of dismissal, upon a motion to dismiss based on any procedural
irregularity occurring before trial, or an order excluding evidence
in favor of the defendant prior to trial;
(2)
An order arresting judgment or acquitting the defendant contrary
to the verdict of the jury or before such verdict can be rendered.
(3)
An order of the Court directing the jury to find for the Defendant;
(4)
An order made after judgment and sentence affecting the substantial
rights of the Tribes.
(c) A
notice of appeal must be filed within 10 days of the entry of the
final judgment and sentence or other appealable order and such must
be served on all parties except the party filing the appeal.
(d) Such
appeals shall be had in accordance with the Appellate Procedure Act.
Section 502. Stay of Judgment and Relief Pending Review
(a) A
sentence of imprisonment a banishment may be stayed if an appeal is
taken and the defendant may be given the opportunity to make bail.
Any defendant not making bail or otherwise obtaining release pending
appeal shall have all time spent in incarceration counted towards
his sentence in the matter under appeal.
(b) A
sentence to pay a fine or a fine and costs, may be stayed pending
appeal upon motion of the defendant, but the court may require the
Defendant to pay such money subject to return if the appeal should
favor the defendant and negate the requirement for paying such.
(c) An
order placing the defendant on probation may be stayed on motion of
the defendant if an appeal is taken.
CHAPTER SIX - OTHER PROVISIONS
Section 601. Search and Seizure
(a) Search
Warrants. A search warrant is an order directed to any Tribal
or Federal law enforcement officer directing him to search a particular
place for described persons or property and if found to seize them.
(b) A
warrant shall issue only on an affidavit or affidavits sworn to before
a Tribal Judge or Magistrate and establishing grounds for issuing
the warrant. If the Judge or Magistrate is satisfied that grounds
for the application exist or that there is probable cause to believe
that they exist, he shall issue a warrant identifying the property
and naming or describing the person or place to be searched. The finding
of probable cause may be based on hearsay evidence either in whole
or in part. Before ruling on a request for a warrant, the judgment
may require the affiant to appear personally and be examined under
oath.
(c) Contents
of Search Warrants. Every search warrant shall contain the name
and address of the Court and the signature of the Judge or Magistrate
issuing the warrant. It shall specifically describe the place to be
searched and the items to be searched for and seized. The warrant
shall be directed by any Tribal or Federal police or law enforcement
officer or official and shall command such person or persons to search,
within a specified period of time not to exceed 10 days, the person
or place named for the property or persons specified, and contain
the date on which it was issued.
(d) Service
of Search Warrants. Search warrants shall be served by any Tribal
or Federal law enforcement officer between the hours of 7:00 a.m.
and 9:00 p.m., unless otherwise directed on the warrant by the Judge
or Magistrate who issued it. A copy of the warrant shall be left with
an occupant or owner over sixteen (16) years of age of the place searched
if present during said search. If the place to be searched is not
occupied at the time of the search, a copy of the warrant shall be
left in some conspicuous place on the premises. The officer may break
open any outer or inner door or window of a place to be searched,
or any part of any place to be searched, or anything thereon to execute
a search warrant, if after notice of his authority and purpose, he
is denied or refused admittance, when necessary to liberate himself,
or a person aiding in the execution of the warrant or when the premises
to be searched are unoccupied at the time of the search.
(e) Inventory.
The officer serving a search warrant shall make a signed inventory
of all property seized and attached such inventory to the warrant.
A copy of the inventory and search warrant shall be left with an occupant
or owner over sixteen (16) years of age if present during the search
or left in a conspicuous place with the search warrant if an occupant
is not present during the search.
(f) Return
of Search Warrants.
(1)
the officer shall endorse on the warrant the date, time, and place
of service and the signature of the officer serving it.
(2)
The warrant shall be returned to the Court with an inventory of
property seized within twenty-four (24) hours of service, Saturdays,
Sundays, and legal holidays excluded.
(3)
In every case the warrant shall be returned within ten (10) days
of the date of issuance, unless return be due on a Saturday, Sunday,
or legal holiday, in which case, the return shall be made on the
next business day.
(g) Property
Subject To Seizure. Property which is subject to seizure is property
in which there is probable cause to believe such property is:
(1)
Stolen, embezzled, contraband, or otherwise criminally possessed;
or
(2)
Which is or has been used to commit a criminal offense; or
(3)
Property which constitutes evidence of the commission of a criminal
offense.
(h) Warrantless
Searches. A law enforcement officer may conduct a search without
a warrant only:
(1)
Incident to a lawful arrest; or
(2)
With the consent of the person to be searched, or
(3)
With the consent of the person having actual possession and control
of the property to be searched; or
(4)
When he has reasonable grounds to believe that the person searched
may be armed and dangerous; or
(5)
When the search is of a vehicle capable of being moved and the officer
has probable cause to believe that it contains property subject
to seizure, or upon inventory of such vehicle after impoundment
and seizure.
(6)
In any other circumstances wherein federal law has held that a search
without obtaining a warrant prior to the search in those circumstances
would not be unreasonable.
(i) A
person aggrieved by an unlawful search and seizure may move the Tribal
Court for the return of the property, not contraband, on the ground
that he is entitled to lawful possession of the property illegally
seized. The judge may receive evidence on any issue of fact necessary
to the decision of the motion. If the motion is granted, the property
shall be returned, if not contraband, and shall not be admissible
at any hearing or trial.
(j) A
law enforcement officer may stop any person in a public place whom
he has reasonable cause to believe is in the act of committing an
offense, or has committed an offense, or is attempting to commit an
offense and demand of him his name, address, an explanation of his
actions and may, if he has reasonable grounds to believe his own safety
or the safety of other nearby is endangered, conduct a frisk type
search of such person for weapons.
(k) The
term "property" is used in this Section to include documents, books,
papers, and any other tangible object.
Section 601. Arrest
(a) An
arrest is the taking of a person into custody in the manner authorized
by law. An arrest may be made by either a police or law enforcement
officer or by a private person.
(b) A
police or law enforcement officer may make an arrest in obedience
to an arrest warrant, or he may, without a warrant, arrest a person:
(1)
When he has probable cause to believe that an offense has been committed
in his presence.
(2)
When he has probable cause for believing the person has committed
an offense, although not in his presence, and there is reasonable
cause for believing that such person before a warrant can be obtained
may:
(i)
flee the jurisdiction or conceal himself to avoid arrest, or
(ii)
destroy or conceal evidence of the commission of an offense, or
(iii)
injure or annoy another person or damage property belonging to
another person.
(c) A
private person may arrest another, for prompt delivery to a law enforcement
officer.
(1)
When an offense is committed or attempted in his presence;
(2)
When an arrest warrant for that person is in fact outstanding.
(d) Any
person making an arrest may orally summon as many persons as he deems
necessary to help him.
(e) If
the offense charged is an offense punishable by banishment or in violation
of the federal major crimes act, the arrest may be made at his residence
at any time of the day or night. Otherwise the arrest pursuant to
a warrant can be made at a person's residence only between the hours
of 7:00 a.m. and 9:00 p.m. unless arrest at night at the residence
is specifically authorized by the issuing Judge. Arrest at places
other than at the residence may be made at any time.
(f) Any
person, upon making an arrest:
(1)
Must inform the person to be arrested of his intention to arrest
him, of the cause or reasons for the arrest, and his authority to
make it, except when the person to be arrested is actually engaged
in the commission of, or an attempt to, commit an offense, or is
pursued immediately after its commission or an escape if such is
not reasonably possible under the circumstances;
(2)
Must show the warrant of arrest as soon as is practicable, if such
exists and is demanded;
(3)
If a law enforcement officer, may use reasonable force and use all
necessary means to effect the arrest if the person to be arrested
either flees or forcibly resists after receiving information of
the officer's intent to arrest except that deadly force may be used
only as otherwise provided by law;
(4)
If a law enforcement officer, may break open a door or window of
a building in which the person to be arrested is, or is reasonable
believed to be, after demanding admittance and explaining the purpose
of which admittance is desired;
(5)
May search the person arrested and take from him and put into evidence
all weapons he may have about his person;
(6)
Shall as soon as is reasonably possible, deliver the person arrested
to a police office or do as commanded by the arrest warrant or deliver
the person arrested to the jail for processing of a complaint.
Section 603. Arrest in Hot Pursuit
(a) Any
law enforcement officer otherwise empowered to arrest a person within
this jurisdiction may continuously pursue such person from a point
of initial contact within the jurisdiction of the Tribes to any point
of arrest within or without the jurisdiction of the Tribes and such
arrest shall be valid, provided that such officer shall respect
and comply with the extradition requirements of the jurisdiction in
which the arrest is finally made.
(b) Any
law enforcement officer commissioned by the Federal Government, any
Indian Tribe, or State of when in hot and continuous pursuit of any
person for the commission of a felony within such other jurisdiction
may validly arrest such person within the jurisdiction of the Tribes,
provided, that any person so arrested shall be forthwith delivered
to a Tribal Police Chief for a show cause hearing pursuant to the
extradition laws of the Tribes.
Section 604. Limitation on Arrests in the Home
A person
may be arrested in his own home only:
(a) By
a law enforcement office pursuant to an arrest warrant.
(b) By
a law enforcement officer for an offense committed in the home in
the presence of the officer.
(c) By
a law enforcement officer in continuous pursuit of a person who flees
to his home to avoid arrest.
Section 605. Notification of Rights
(a) Upon
arrest, the defendant shall be notified that he has the following
rights:
(1)
The right to remain silent and that any statements made by him may
be used against him in Court.
(2)
That he has the right to obtain an attorney at his own expense and
to have an attorney present at any questioning.
(3)
That if he wishes to answer the questions of the police he may stop
or request time to speak with his attorney at any point in the questioning.
(b) Prior
to conducting a consensual warrantless search pursuant to Section
601(h) (2) or (3) of this Chapter, the officer shall specifically
inform the person to be searched or the person in charge of the property
to be searched that:
(1)
The search will be conducted only with the person's consent.
(2)
That the person is under no obligation or requirement to consent
to the search and may refuse to consent to the search if he chooses
to do so, or request the advice of an attorney at his own expense
prior to responding to the requested consent to the search.
(3)
That if the person refuses to consent to the search, the officer
will not search the person or property without first obtaining a
warrant from the Courts.
(c) Whenever
possible, the officer should obtain a written statement that the person
known these rights, understands, and waives them prior to taking a
voluntary statement from a defendant or conducting a warrantless consensual
search, provided that the absence of such a written statement does
not preclude the admission of the statement or other evidence if the
Court determines that the statement or consent to search were voluntary.
Section 606. Executive Order for Relief From Judgment
(a) The
Chief Executive Officer of the Tribes shall have authority to pardon,
or commute any judgment and sentence imposed for any criminal offense
upon a determination that a pardon or commutation of sentence promotes
the ends of justice.
(b) Such
pardon or commutation will be entered by filing a copy of the proposed
action with the Court Clerk for a period of sixty (60) days after
a copy of the proposed executive action has been submitted for approval
to each Justice of the Supreme Court and to each member of the Tribal
Legislative Body. If, within sixty (60) days after the filing thereof,
with proof of service, any such Justice or Legislator shall disapprove
the proposed pardon or commutation with written reasons, in a writing
delivered to the Chief Executive Officer and filed with the Court
Clerk, such proposed pardon or commutation shall not be approved.
Otherwise, upon expiration of the sixty (60) day period, the pardon
or commutation may be issued by the Chief Executive Officer of the
Tribes.
(c) Upon
the filing of written reasons for disapproval of such proposed pardon
or commutation by any Justice or Legislator referred to in (b) above,
the Chief Executive Officer may order the proposed pardon or commutation
to be placed on the ballot for the next regularly scheduled election
to determine, by referendum vote of the Tribes, whether such pardon
or commutation shall be granted. The vote of the People of the Tribes
shall be conclusive.
CHAPTER SEVEN - BAIL
Section 701. Release in Nonbanishment Cases Prior to Trial
(a) Any
person charged with an offense, other than an offense punishable by
banishment, shall, at his appearance before a Judge or Magistrate
of the Court, be ordered released pending trial on his personal recognizance
or upon execution of an unsecured appearance bond in an amount specified
by such judicial officer subject to the condition that such person
shall not attempt to influence, injure, tamper with or retaliate against
an officer, juror, witness, informant, or victim or violate any other
law, unless the judicial officer determines in the exercise of his
discretion, that such a release will not reasonably assure the appearance
of the person as required.
When
such determination is made, the judicial officer shall, either in
lieu of or in addition to release on personal recognizance or execution
of an unsecured appearance bond, impose one or any combination of
the following conditions of release which will reasonably assure the
appearance of the person for trial:
(1)
Place the person in the custody of a designated person or organization
agreeing to supervise him;
(2)
Place restrictions on the travel, association, or place of abode
of the person during the period of release;
(3)
Require the execution of an appearance bond in a specified amount
and the deposit in the registry of the Court, in cash or other security
as directed, of a sum not to exceed 10 percentum of the amount of
the bond, such deposit to be returned upon the performance of the
conditions of release;
(4)
Require the execution of a bail bond with sufficient solvent sureties,
or the deposit of cash in lieu thereof; or
(5)
Impose any other condition deemed reasonably necessary to assure
appearance as required, including a condition requiring that the
person return to custody after specified hour.
(b) In
determining which conditions of release will reasonably assure appearance,
the judicial officer shall, on the basis of available information,
take into account the nature and circumstances of the offense charged,
the weight of the evidence against the accused, the accused's family
ties, employment, financial resources, character and mental condition,
the length of his residence in the community, his record of convictions,
and his record of appearance at Court proceedings or of flight to
avoid prosecution or failure to appear at Court proceedings.
(c) A
judicial officer authorizing the release of a person under this section
shall issue an appropriate order containing a statement of the conditions
imposed, if any, shall inform such person of the penalties applicable
to violations of the conditions of his release and shall advise him
that a warrant for his arrest will be issued immediately upon any
such violation.
(d) A
person for whom conditions of release are imposed and who after seventy-two
hours from the time of the release hearing continues to be detained
as a result of his inability to meet the conditions of release, shall,
upon application, be entitled to have the conditions reviewed by the
judicial officer who imposed them. Unless the conditions of release
are amended and the person is thereupon released, the judicial officer
shall set forth in writing the reasons for requiring the conditions
imposed. A person who is ordered released on a condition which requires
that he return to custody after specified hours shall, upon application,
be entitled to a review by the judicial officer who imposed the condition.
Unless the requirement is removed and the person is thereupon released
on another condition, the judicial officer shall set forth in writing
the reasons for continuing the requirement. In the event that the
judicial officer who imposed conditions of release is not available,
any other judicial officer of the Court may review such conditions.
(e) A
judicial officer ordering the release of a person on any condition
specified in this section may at any time amend his order to impose
additional or different conditions of release: Provided, that, if
the imposition of such additional or different conditions results
in the detention of the person as a result of his inability to meet
such conditions or in the release of the person on a condition requiring
him to return to custody after specified hours, the provisions of
subsection (d) shall apply.
(f) Information
stated in, or offered in connection with, any order entered pursuant
to this section need not conform to the rules pertaining to the admissibility
of evidence in a court of law.
(g) Nothing
contained in this section shall be construed to prevent the disposition
of any case or class of cases by forfeiture of collateral security
where such disposition is authorized by the Court, nor to prevent
the Court by rule from authorizing and establishing a Policeman's
Bail Schedule for certain offenses or classes of offenses through
which a person arrested may post bail with the Chief of the Tribal
Police for transmittal to the Court Clerk and obtain his release prior
to his appearance before a Judicial officer.
Section 702. Appeal From Conditions of Release
(a) A
person who is detained, or whose release on a condition requiring
him to return to custody after specified hours is continued, after
review of his application pursuant to Section 701(d) or Section 701(e)
by a Magistrate of the Court, may move the Court to amend the order
and have such motion determined by a Judge of the Court. Said motion
will be determined promptly.
(b) In
any case in which a person is detained after (1) a Judge of the Tribal
Court denies a motion, under subsection (a) above, to amend an order
imposing conditions of release, or (2) conditions of release have
been imposed or amended by a Judge of the Tribal District Court, an
appeal may be taken to the Supreme Court. Any order so appealed shall
be affirmed if it is supported by the proceedings below. If an order
is not so supported, the Supreme Court may remand the case for further
hearing, or may, with or without additional evidence, order the person
released pursuant to Section 701 upon such conditions as the Supreme
Court determines to be proper. This appeal shall be determined promptly.
Section 703. Release in Banishment Cam or After Conviction
A person
(1) who is charged with an offense punishable by banishment or (2) who
has been convicted of an offense and is either awaiting sentence or
has filed an appeal, shall be treated in accordance with the provisions
of Section 701 unless the Court or Judge has reason to believe that
no one or more conditions of release will reasonably assure that the
person will not flee or pose a danger to any other person or to the
community. If such a risk of flight or danger is believed to exist,
or if it appears that an appeal is frivolous or taken for delay, the
person may be ordered detained. The provisions of Section 702 shall
not apply to persons described in this Section.
Section 704. Penalties for Failure to Appear
Whoever,
having been released pursuant to this Chapter willfully fails to appear
before the Court or a judicial officer as required, shall incur a forfeiture
of any security which was given or pledged for his release, and in addition,
shall, (1) if he was released in connection with a charge having banishment
as a possible punishment, or while awaiting sentence or pending appeal
after conviction of any offense having had banishment imposed as a part
of the sentence, be subject to a fine of $500.00 and imprisonment for
a term of six months, and if banishment is imposed, one year shall be
added to the term of banishment otherwise imposed, or (2) if he was
released in connection with a charge other than as described, in (1)
above, he shall be fined not more than the maximum provided for the
offense charged or imprisoned for not more than six (6) months or both,
or (3) if he was released for appearance as a material witness, shall
be fined not more than Two Hundred Fifty Dollars ($250.00) or imprisoned
for not more than three (3) months or both.
Section 705. Persons or Classes Prohibited as Bondsmen
The following
persons or classes shall not be bail bondsmen and shall not directly
or indirectly receive any benefits from the execution of any bail bond;
jailers, police officers, magistrates, judges, court clerks and any
person having the power to arrest or having anything to do with the
control of Tribal prisoners.
Section 706. Authority to Act as Bail Bondsmen
Any person
authorized to act as bail bondsmen or runners in the federal or state
courts shall be qualified to act as bondsmen and runners in the Tribal
Court, and shall be liable to the same obligations as in their licensing
jurisdiction and comply with all orders and rules of the Supreme Court
and District Court.
CHAPTER EIGHT - CERTIFICATION AS CHILD
Section 801. Persons 16 or 17 Years of Age to be Considered as Adult
for Committing Certain Offenses.
Any person
sixteen (16) or seventeen (17) years of age who is charged with Assault
in the First Degree, Mayhem, Kidnapping, Homicide in the First Degree
or Rape in the First Degree, shall be considered as an adult. Upon the
arrest and detention, such sixteen or seventeen-year-old accused shall
have all the statutory and constitutional rights and protections of
an adult accused of a crime, but shall be detained in a jail cell or
ward entirely separate from prisoners who are eighteen (18) years of
age or over.
Section 802. Warrants or Summons
Upon the
filing of a complaint against such accused person, a warrant or summons
shall be issued which shall set forth the rights of the accused person,
and the rights of the parents, guardian or next friend of the accused
person to be present at the arraignment, to have representation as provided
in Section 102 of the Tribe's Criminal Procedure Act and to make application
for certification of such person as a child to the Juvenile Division
of the Tribal District Court. The warrant or summons shall be personally
served together with a certified copy of the complaint on the accused
person and on the parents, guardian or next friend of the accused person.
Section 803. Certification Hearing
(a) The
accused person shall file a motion for certification as a child within
ten (10) days of the arraignment. Upon the filing of such a motion,
the complete juvenile record of the accused shall be made available
to the Attorney General.
(b) Within
ten (10) days of the filing of such a motion, the Court shall hear
evidence regarding certification of the accused person as a child.
(c) When
ruling on the certification motion of the accused person, the Court
shall give consideration to the following guidelines, listed in order
of importance:
(1)
Whether the alleged offense was committed in an aggressive, violent,
premeditated or willful manner;
(2)
The record and past history of the accused person, including previous
contacts with law enforcement agencies and juvenile or criminal
courts, prior periods of probation and commitments to juvenile institutions;
and
(3)
The prospects for adequate protection of the public if the accused
person is processed through the juvenile system.
(d) The
Court, in its decision on the certification motion of the accused
person, need not detail responses to each of the above considerations,
but shall state that the Court has considered each of the guidelines
in reaching its decision.
Section 804. Certification as Child
Upon completion
of the Certification Hearing, if the accused person is certified as
a child to the Juvenile Division of the Tribal District Court, then
all adult court records relative to the accused person and the instant
charge shall be expunged and any mention of the accused person shall
be removed from public record.
Section 805. Final Order
An order
certifying a person as a child or denying the request for certification
as a child pursuant to this Section shall be a final order, appealable
when entered.
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