TITLE
II - CRIMINAL PROCEDURE
CHAPTER I - COMPLAINTS
[Digitizer's
note: Resolution No. 2002 - 47
refers to a repeal of Title II (1), Criminal Procedure (First Choice).]
Section
1. Complaints:
a) A
complaint is the written statement of the essential facts charging
that a named individual has committed a particular criminal offense.
An criminal prosecutions shall be initiated by a complaint fired with
the Court and sworn to by a person having personal knowledge of the
offense.
b) Complaints
shall contain:
(i)
The signature of the complaining witness or witnesses, sworn to
before a Judge, a Clerk or any law enforcement officer.
(ii)
A written statement by the complaining witness or witnesses having
personal knowledge of the violation describing in ordinary language
the nature of the offense commuted including the time and place
as nearly as may be ascertained.
(iii)
The name or description of the person alleged to have committed
the offense.
(iv)
A description of the offense charged.
(v)
Unless the complaint is signed by a police officer having personal
knowledge of the violation, no arrest warrant or summons shall issue
to the defendant unless the complaint is approved by a Judge.
c) The
Chief Judge may designate an individual or individuals who shall be
available to assist persons in drawing up complaints and who shall
screen them for sufficiency. Such complaints shall then be submitted
without unnecessary delay to a Judge to determine whether an arrest
warrant or summons should be issued.
Section
2. Time Limit for Commencing Criminal Prosecution:
No prosecution
for an offense under this Code shall be maintained unless the complaint
is filed within one (1) year after the commission of the offense. Time
during which the accused is outside the jurisdiction of the Court, for
whatever reason, shall not be included in this one (1) year limit.
CHAPTER II - ARRESTS
Section 1. Arrests:
a) Arrest
is taking of a person into police custody in order that he maybe held
to answer for a criminal offense.
b) No
member of the Tribal Police Department or other law enforcement officer
of the Tribe shall arrest or apprehend any person for alleged criminal
offense except under the following circumstances:
(i)
When such offense shall occur in the presence of an arresting officer;
or
(ii)
When the arresting officer shall have probable cause to believe
that the person to be arrested has committed a felony offense; or
(iii)
When the arresting officer acts pursuant to warrant issued by the
Tribal Court commanding him or her to arrest such person.
Section 2. Warrants for Arrests:
a) The
Tribal Court shall have the authority to issue warrants for arrest
only upon satisfaction of the issuing Judge that there is probable
cause to believe that an offense against Tribal law has been committed
by the named accused, based on sworn written statements or sworn oral
testimony.
b) The
arrest warrant shall contain the following information:
(i)
Name or description and address, if known, of the person to he arrested;
(ii)
Date of issuance of the warrant;
(iii)
Description of the offense charged;
(iv)
Signature of the issuing Judge.
c) The
warrant shall be executed by the arrest of the defendant. The officer
need not have the warrant in his possession at the time of arrest,
but upon request shall, as soon as possible, show it to he defendant.
Section 3. Notification of Rights at Time of Arrest:
Upon arrest,
the suspect shall be advised immediately of the following rights:
(i)
That he has the right to remain silent;
(ii)
That any statement made by him may be used against him in Court;
(iii)
That he has the right to obtain counsel at his own expense;
(iv)
That he has the right to make at least one (I) completed telephone
call to a friend and at least one completed call to a lay counselor
or attorney immediately after being registered and identified at the
jail, or sooner if there is an unreasonable delay in taking the accused
to jail or in registering the accused at the jail.
Section 4. Summons in Lieu of Arrest Warrant:
a) A
law enforcement officer or judge may, in lieu of an arrest warrant,
issue a summons commanding the accused to appear before the Court
at a stated time and place and answer to the charge.
b) The summons shall contain the same information as an arrest warrant,
except that it maybe signed by a police officer.
c) The summons shall state that if a defendant fails to appear in
response to the summons, a warrant for his or her arrest shall be
issued.
d) The
summons together with a copy of the complaint, shall be served upon
the defendant by delivering a copy to the defendant personally or
by leaving a copy at his usual residence or place of business with
a person of suitable age and discretion who also resides or works
there. Service shall be made by an authorized law enforcement officer,
who shall make a return of service which shall be filed with the records
of the case.
CHAPTER III - SEARCHES
Section 1. Search Warrant:
a) A
search warrant is a written order, signed by a Judge, directing a
law enforcement officer to conduct a search and seize property specified
in the warrant. A search warrant shall describe the person, property
or to be searched and shall describe the person, property or place
to be searched and shall describe the property to be seized.
b) A
search warrant shall be issued only by a Judge and only upon probable
cause that a search will discover:
(i)
Stolen, embezzled, contraband or otherwise unlawfully possessed
property;
(ii)
Property which has been or is being used to commit a criminal offense;
or
(iii)
Property which constitutes evidence of the commission of a criminal
offense. Such probable cause shall he supported by a sworn written
statement or sworn oral testimony.
Section 2. Execution and Return of Search Warrant:
Warrants
shall be served only by authorized law enforcement officers. The executing
officer shall return the warrant to the Court within the time limit
shown on the face of the warrant, which in no case shall be longer than
ten (10) days from the date of issuance. Warrants not returned within
such time limits shall be void. The warrant shall be served between
7:00 A.M. and 9:00 P.M., unless the Judge, upon a showing of good cause
therefor, inserts a direction that it be served at some other time.
Section 3. Search Without a Warrant:
No law
enforcement officer shall conduct any search without a valid warrant
except:
a) When
he is making a lawful arrest; or
b) With
the voluntary consent of the person being searched or the person entitled
to possession of property being searched; or
c) When
the search is of a moving vehicle and the officer has probable cause
to believe that it contains contraband, stolen property, or property
otherwise unlawfully possessed.
Section 4. Disposition of Seized Property:
a) The
officer serving and executing a warrant shall make an inventory of
all property seized and a copy of this inventory shall be left with
every person from whom property is seized.
b) A
hearing shall be held by the Court to determine the disposition of
all property seized by the police. Upon satisfactory proof of ownership,
the property shall be delivered immediately to the owner, unless the
property is contraband or is to be used as evidence in a pending case.
Property seized as evidence shall be returned to the owner after Final
Judgment. Property confiscated as contraband shall be destroyed or
otherwise lawfully disposed of as ordered by the Court.
Section 5. Exclusion of Unlawfully Obtained Evidence:
The Court
may prohibit he introduction or use at trial of any evidence seized
in a search conducted in violation of Section 3 and may, in addition,
recommend to the chief law enforcement officer of the Reservation any
appropriate disciplinary actions against the law enforcement officer
who conducted the unlawful search.
CHAPTER IV - ARRAIGNMENT AND RELEASE
Section 1. Arraignment:
a) Arraignment
is the bringing of an accused before the Court to inform him of his
rights and of the charge against him, to receive his plea, and to
set conditions of pre-trial release as appropriate in accordance with
this Code.
b) Arraignment
shall be held in Open Court without unnecessary delay after the accused
is taken into custody and in no instance shall arraignment be later
than 72 hours after arrest.
c) Before
an accused is required to plead to any criminal charges the Judge
shall:
(i)
Read to the accused, and provide the accused with a copy of the
complaint and determine that the accused understands the complaint
and the section of the Code which he is charged with violating,
including the maximum authorized penalty; and
(ii)
Advise the accused that he has the right to remain silent, to have
a speedy and public trial where he will be confronted with witnesses
against him after he has had sufficient time to prepare his defense
if he pleads "Not Guilty" to be tried by a jury if the offense
charged is punishable by imprisonment, and to be represented by
counsel, at his own expense, before he pleads to the charge.
***
d) If the arrest was without a warrant in order for the accused
to be continued to be held in custody the Judge shall determine during
arraignment whether there is probable cause to believe that an offense
against Tribal law has been committed by the accused.
e) At
arraignment, the Judge shall call upon the accused to plead to the
charge and proceed as follows:
(i)
If the accused pleads "Not Guilty" to the charge, the Judge shall
set a trial date and consider conditions for release prior to trial
as provided in Chapter IV, Section 2;
(ii)
If the accused pleads "Guilty" to the charge, the Judge shall accept
the plea only the Judge is satisfied that the plea is made voluntarily
and rite accused understands the consequences of the plea, including
the rights he is waiving by the plea. The Judge may then impose
sentence or defer sentencing for a reasonable time not to exceed
thirty (30) days in order to obtain any information the Judge deems
necessary for the imposition of a just sentence. The accused shall
be afforded an opportunity to be heard by the Court prior to sentencing.
(Iii)
If the accused refuses to plead, the Judge shall enter a plea of
"Not Guilty " on his behalf.
Section 2. Release Before Final Judgment of Conviction:
a) At
arraignment, the Judge shall decide whether to release the defendant
from custody pending sentencing or trial. As conditions of release,
the Judge may, to assure the accused's appearance at all times lawfully
required, order any or all of the following:
(i)
That the accused deposit cash or other sufficient collateral, in
an amount specified by the Judge;
(ii)
That the accused, and/or any other designated person or organization
satisfactory to the Judge, execute a written promise to appear or
to deliver the accused at all required times;
(iii)
Reasonable restrictions on the travel, association or place of resident
of the accused;
(iv)
Any other condition reasonably necessary to assure the appearance
of the accused as required.
b) Any
police officer authorized to do so by the Court may admit an arrested
person to bail pending trial pursuant to a bail schedule and conditions
prepared and approved by the Court.
c) The
Court may revoke release of any defendant and order the defendant
committed at any time if it determines that the conditions of release
will not reasonably assure the appearance of the defendant or if any
conditions of release have been violated.
Section 3. Withdrawal of Guilty Plea:
The Court
may, in its discretion, allow a defendant to withdraw a plea of guilty
if it appears that the interest of justice and fairness would be served
by doing so.
CHAPTER V - TRIAL PROCEEDINGS
Section 1. Rights of Defendant in Criminal Cases:
No person
shall twice be put in jeopardy for the same offense, nor shall he be
compelled in any criminal case to be a witness against himself. The
accused shall have the right to a speedy and public trial, the right
to be confronted with witnesses against him, he right to assistance
of counsel at his own expense and the right to demand trial by an impartial
jury if the offense, or combination of offenses, charged is punishable
by imprisonment.
Section 2. Issuance of Subpoenas:
a) Upon
request of the defendant or upon the Court's own initiative, the Court
shall issue subpoenas to compel the testimony of witnesses or the
production of books, records, documents or other physical evidence
relevant to the determination of the case that does not impose an
undue burden on the person processing the evidence. An employee of
the Court may act on behalf of the Court and issue subpoenas which
have been signed by the Chief Judge and which are to be served within
the confines of the Reservation.
b) A
subpoena shall bear the signature of the Chief Judge and shall state
the name of the Court, the name of the person or description of the
physical evidence to be subpoenaed, the title of the proceedings and
the date, time and place where the witness is to appear or the evidence
is to be produced.
Section 3. Service of Subpoenas:
a) A
subpoena may be served at any place within or without the confines
of the Reservation.
b) A
subpoena maybe served by any law enforcement officer or other person
appointed by the Court for such purpose. Service of subpoena shall
be made by delivering a copy of it to the person named or by leaving
a copy at his usual place of residence or business with any person
of suitable age and discretion who also resides or works there.
c) Proof
of service of the subpoena shall be filed with the Court by noting
on the back of a copy of the subpoena the date, time and place that
it was served and noting the name of the person to whom it was delivered.
Proof of service shall be signed by the person who actually served
the subpoena.
Section 4. Failure to Obey Subpoena:
In the
absence of a justification satisfactory to the Court, a person who fails
to obey a subpoena may be deemed to be in contempt of Court.
Section 5. Witness Expenses:
a) Each
witness answering a subpoena shall be entitled to a fee of $
per day for each day the witness' services are required in Court,
plus
cents per mile for travel to and from the Court.
b) The
expenses provided for in this section shall be paid by the Tribe upon
completion of the trial, but such expenses associated with witnesses
called by the defendant may be taxed as costs against the defendant
if he is found guilty and in such case a Judgment for the costs of
witnesses shall be entered against the defendant, provided however
that no defendant shall be imprisoned solely because of his inability
to pay such costs.
c) If
the Court finds that complaint was not filed in good faith, but with
a frivolous or malicious intent, it may order the expenditures incurred
under this section, and such order shall constitute a Judgment against
the complainant.
Section 6. Trial Procedure:
a) The
prosecution shall present its case first, followed by the defendant.
If rebuttal is required, the prosecution shall proceed first, following
by the defendant. The Tribe shall prosecute the charge by presenting
the testimony of the law enforcement officer and any other witnesses
who have information that support the charge. In presenting such evidence,
the Tribe may employ a tribal official, professional attorney, or
other approved spokesperson.
b) All
testimony of witnesses shall be given orally under oath in Open Court
and subject to the right of cross-examination. Documentary and tangible
evidence shall also be received in Open court and available to defendant.
The Court shall not be bound by formal rules of evidence, but shall
use its own discretion as to what evidence it deems necessary and
relevant to the case.
c) The
defendant may be found guilty of a lesser offense not necessarily
included in the offense charged, without the necessity of having been
formally charged with the lesser offense.
d) The
defendant shall be present in Court at every stage of the trial, including
selection of the jury, return of the verdict and imposition of the
sentence.
e) The
defendant is presumed to be innocent. The prosecution has the burden
of proving the defendant's guilt beyond a reasonable doubt including
the facts that a crime has actually been committed and that the defendant
committed it with the requisite intent when intent is an element of
the offense.
f) At
the conclusion of the evidence, the prosecution and defendant each
in turn shall summarize the proof and make final argument, with the
prosecution having the right to speak last.
g) All
records relating to statements or confessions of the defendant or
reports of physical, mental or other scientific tests or examinations
relating to or performed on the defendant, when in the possession
or control of the Tribe, shall be open to inspection and copying by
the defendant.
Section 7. Right to Jury Trial:
a) Any
person accused of a crime punishable by imprisonment shall be granted
a jury trial upon his or her request, made at the time of arraignment
or by a written request filed with the Clerk at least fifteen (15)
days before the date set for trial. A jury shall consist of at least
six (6) members of the Tribe selected at random from a list of eligible
jurors prepared each year by the Court.
b) An
eligible juror is a tribal member who is eighteen (18) years of age,
is of sound mind and discretion, has never been convicted of a felony,
is not a member of the Tribal Council, or a Judge, officer or employee
of the Court, or an employee of the Reservation Police Force or Reservation
Jail.
c) A
current roster of at least twenty-five (25) tribal members who are
eligible for jury duty shall be prepared and maintained by the Clerk.
d) Under
the supervision of the Clerk witnessed by at least two (2) other adult
persons,a panel or jurors shall be drawn by lot from the jury roster.
A trial jury shall consist of six (6) qualified jurors selected in
a random fashion from a panel of twelve (12) eligible persons taken
from the jury roster, none of whom has an interest in the case, or
is related as spouse, parent, brother or sister to any of the parties
or their attorneys. If the jury panel is exhausted before a sufficient
number of jurors are selected, additional panels shall be drawn by
lot from the jury roster until a trial jury is selected.
e) Upon
a showing satisfactory to the Clerk, the following persons, upon their
request, may be excluded from the jury roster and jury panels:
(i)
Persons who reside outside of the Reservation and more than fifty
(50) miles from the nearest exterior boundary of the Reservation;
(ii)
Persons of advanced age, infirmity or illness;
(iii)
Persons burdened by such other circumstances or subject to such
other demands that jury service would cause extraordinary hardship
for them. Such hardship must be substantially greater than would
be experienced ordinarily by persons serving as jurors.
(Iv)
Employees of the United States.
f) Each
member of a designated jury panel shall be served with a summons,
signed by the Judge, indicating the date, place and time that he is
first to appear for jury service. The notice shall be served by the
Clerk of Court, a member of the Tribal Police Department, or any other
person who maybe designated in writing by the court The notice shall
be served not less than seventy two (72) hours prior to the designated
time for initial appearance. After such initial appearance, the times
and places for attendant by those persons included on the designated
jury panel shall be prescribed by the Court.
g) A
person summoned to serve as a juror who has not been excused pursuant
to any provisions of this Code, or by Order of Court, who fails to
appear where and when summoned, or who having so appeared absents
himself therefrom without he permission of the Court, or who renders
himself unfit to commence or continue the duties of a juror, shall
be in contempt of Court. In addition to the penalties for contempt
of Court prescribed by this Code, he may be charged by the Court with
any costs incurred by the Court or by any other persons which resulted
from such failure to be present or from such misconduct.
h) Each
party may question members of the jury panel for the purpose of selecting
a trial jury. In criminal cases, in addition to disqualifying jurors
for cause as determined by the Judge, each side shall be entitled
to three peremptory challenges without assigning any cause. Where
there is more than one defendant, they must join in a challenge before
it can be made unless the Court, for good cause shown, shall permit
otherwise, or shall permit each defendant to exercise two peremptory
challenges.
i) Each
member of the jury panel called to serve and each juror who serves
upon a jury shall be entitled to compensation at a rate determined
by the Council. All payment of compensation shall be supported by
vouchers signed by the Presiding Judge. Such vouchers shall be paid,
in order of presentation, from available funds on deposit for the
purpose.
j) The
Judge shall instruct the jury with regard to the applicable law and
the jury shall decide all questions of fact. At the close of evidence,
or at such earlier time during the trial as the Judge directs, any
party may file with the Judge written instructions on the law which
the pay requests the Judge to deliver orally to the jury. At the same
time, copies of such requests shall be furnished to the opposing party.
The Judge shall inform each party of his proposed action upon each
request prior to the arguments to the jury, but the Judge shall deliver
his instructions to the jury after closing arguments are completed.
No party may assign as error any portion of the Judge's charge or
any omission unless he makes an objection and presents reasons for
the objection before the jury retires to consider its verdict. Opportunity
shall be given to make an objection out of the hearing of the jury.
k) After
deliberation in private, the jury shall return to the Judge, in Open
Court, a verdict of "Guilty" or "Not Guilty" to each
charge for each defendant. A verdict of "Guilty" shall require unanimous
vote of the jury.
CHAPTER VI - SENTENCING
Section 1. Sentences:
Any person
who has been convicted of an offense enumerated in this Code maybe sentenced
by the Court to one or a combination of the following penalties:
a) Imprisonment
for a period not to exceed the maximum permitted by the code provision
defining the offense. Imprisonment may be continuous or intermittent.
On any sentence of imprisonment, credit shall be given for all time
spent in custody in an institution as a result of the charge for which
the sentence was imposed. Imprisonment may include commitment to an
appropriate institution or program, either on or off the Reservation,
for care, treatment, evaluation or rehabilitation of the offender.
Anyone receiving physical custody of a person sentenced by the Court
shall be acting solely as an agent of the Tribe and Court. Jurisdiction
over a person sentenced to a program or institution off the Reservation
shall be retained by the Tribe and the Court exclusively. No placement
off the Reservation shall be valid unless first approved in writing
by the chief Judge, and any order of such placement shall specify
that the Tribe and the court retain jurisdiction over any person so
placed.
b) A
money fine in an amount not to exceed the maximum permitted by the
code provision defining the offense. If the Court determines that
a convicted offender is unable to pay forthwith a money fine assessed
under this section or any costs assessed under Chapter 5, Section
5 (b) of this Title, the court shall allow the offender a reasonable
period of time to pay the entire sum or allow the offender to make
installment payments to the Clerk of Court at specified intervals
until the entire sum is paid. If the offender defaults on such payments
the court may find the offender in contempt of Court and punish the
offender accordingly, but no person shall be held in contempt of Court
where nonpayment is because of indigence. Any convicted offender may,
if such person so chooses, elect to serve time in prison at the rate
of $
per day to be credited against any fine or costs such person owes.
c) In
addition to or in lieu of the penalties provided above, the Court
may require a convicted offender who has inflicted injury upon the
person or property of another to make restitution or compensation
to the injured person by means of the surrender of property, payment
of money damages, or the performance of any other act including appropriate
work detail for the benefit of the injured party.
d) In
its discretion, the Court may commute or suspend some or all of the
sentence imposing a fine or imprisonment, or grant probation, on condition
that the convicted person does work for the benefit of the Tribe.
A person unable or unwilling to work may be confined in jail or fined
as provided above.
e) In
determining the character and duration of the sentence to be imposed,
the Court shall take into consideration the previous conduct background
and characteristics of the defendant, the circumstances under which
the offense was committed, whether the offense was malicious or willful,
whether the defendant has attempted to make amends, the defendant's
financial resources and the needs of the offender's dependents. Prior
to imposing sentence, the Court shall afford a reasonable opportunity
to the convicted offender to present information to it. The Court
may also request and receive pertinent reports, advice and recommendations
from any other person or agency which may assist the Court in imposing
an appropriate sentence, provided, however, that prior to sentencing,
the convicted person shall be advised of the content, identity, and
source of any such report, advice or recommendation and shall be afforded
a reasonable opportunity to comment upon or rebut it. The Court may
require, as a condition of its sentence, that the convicted offender
undergo available medical, psychiatric or substance abuse treatment,
not operate a motor vehicle, or remain within geographic areas designated
by the Court.
Section 2. Probation:
a) Granting
Probation: After conviction for an offense, the offender maybe placed
on probation under such terms and conditions as the Court deems just,
including a signed pledge by the offender of good conduct for the
duration of the sentence. The Court shall take into consideration
any prior criminal record of the offender, the offender's background,
characteristics, financial condition and any other circumstances helpful
in determining the advisability of probation.
b) Violation
of Conditions of Probation: if any convicted offender violates the
terms and conditions of probation, the Court may, after giving such
person notice and the opportunity for a hearing in Open Court, revoke
or alter the terms of probation, and may, as a penalty for violation
of the probation, impose an additional fine or imprisonment.
Section 3. Forfeiture of Weapons:
Any convicted
offender owning and using a firearm, or any sharp or dangerous weapon,
in the commission of an offense shall forfeit such weapon to the Tribe
as part of the sentence. Upon Order of the Court, such weapon shall
be destroyed, retained by the Police Department, or sold at public sale
after appropriate public notice, pursuant to the direction of the Court.
Section 4. Notification of Right to Appeal:
Following
conviction, except upon a plea of guilty, the Court shall inform the
convicted offender that he has a right to appeal. Upon the convicted
offender's request, the Clerk of the Court shall prepare and file a
Notice of Appeal on behalf of the convicted offender. The convicted
offender, or the Clerk of the Court filing on his behalf, must file
the Notice of Appeal within fifteen (15) working days of the Judgment.
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