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to Table of Contents [Oneida
Indian Nation (New York) Codes and Rules]
Last amended: 2004 RULES OF CRIMINAL PROCEDURE
Chapter 1 - General Provisions Rule 101.
Definitions
Rule 201.
Commencement of a criminal prosecution Rule 301.
Trial by jury or by the court
Rule 401.
Judgment Rule 501.
Arrest defined; person authorized to arrest
Rule 601.
Search without search warrant
Rule 701.
Applicability of provisions Rule 801.
Definitions Rule 901.
Release prior to trial Rule 1001. Expungement of records Rule 1101. Victim rights Rule 1201.
Citizens' complaints against personnel; investigation; description of
procedure; retention of records
"Appellate court" means the Appellate Court of the Oneida Indian Nation. "Appearance bond" means an agreement, with or without security entered into by a person in custody by which the person is bound to comply with the conditions specified in the agreement. "Appearance ticket" means a written request issued by a law enforcement officer that a person appear before the Nation court at a stated time and place. "Arraignment" means the formal a c t of calling the defendant before the court informing the defendant of the offense with which the defendant is charged, and asking the defendant whether the defendant is guilty or not guilty. "Arrest" means the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime. The giving of an appearance ticket is not an arrest. "Bail" means the security given for the purpose of insuring compliance with the terms of an appearance bond. "Complaint" means a written statement under oath of the essential facts constituting a crime, except that an appearance ticket issued by a law enforcement officer shall be deemed a valid complaint if it is signed by the law enforcement officer. "Court" means the Trial court of the Oneida Indian Nation. "Custody" means the restraint of a person pursuant to an arrest or the order of the court. "Detention" means the temporary restraint of a person by a law enforcement officer. "Law enforcement officer" means any person who by virtue of office or public employment is vested by law with a duty to maintain public order or to make arrests for violation of the laws of the Nation or ordinances or with a duty to maintain or assert custody or supervision over persons accused or convicted of crime, and includes probation officers and while acting within the scope of their authority. "Nation Prosecutor" means any attorney who is authorized by law to appear for and on behalf of the Nation in a criminal case. "Search warrant" means a written order made by a judge directed to a law enforcement officer commanding the officer to search the premises described in the search warrant and to seize property described or identified in the search warrant. "Summons" means a written order issued by the judge directing that a person appear before the court at a stated time and place and answer to a charge pending against the person. "Territorial jurisdiction" means all lands possessed, occupied or held by or for the Nation in its sovereign capacity. "Warrant" means a written order made by the judge directed to any law enforcement officer commanding the officer to arrest the person named or described in the warrant.
A criminal action is prosecuted in the name of the Oneida Indian Nation against the person charged with the offense.
The party prosecuted in a criminal action is designated as the defendant. The word "he" as used in these Rules shall mean both the male and female gender and includes the plural as well as the singular.
No person shall be punished for a criminal offense except upon a legal conviction in the Nation Court.
No person can be subjected to a second prosecution for a criminal offense for which he has once been prosecuted and convicted or acquitted in Nation Court.
a. Every criminal proceeding 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 completed 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 conspirator knew or should have known that an offense had been committed. d. Time spent outside the territorial jurisdiction of the Nation for the purpose of avoiding prosecution shall not be counted toward the limitation period.
No act or failure to act shall be subject to criminal prosecution unless made an offense by a law or ordinance of the Nation.
1. If any person charged with a crime and held in jail solely by reason of the crime and is not brought to trial within ninety (90) days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3). 2. If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3). 3 . The time for trial may be extended beyond the limitations of subsection (1) and (2) of this section for any of the following reasons:
4. In the event a mistrial is declared or a conviction is reversed on appeal the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date of the decision of the Nation Appellate court.
1. A prosecution shall be commenced by filing a criminal complaint with the Court by the Nation prosecutor. A copy of the complaint shall be furnished to the defendant or the defendant's attorney. 2. The court may in extreme cases, upon affidavits filed with the Chief Trial judge of the Court of the commission of a crime, order the Nation prosecutor to institute criminal proceedings against any person, but such judge shall be disqualified from sitting in any case wherein such order was entered and is further prohibited from communicating about such case with any other judge appointed to preside therein.
a. Complaint. The complaint is a written statement under oath of the essential facts constituting a crime(s) and charging a named individual(s) with the commission of that crime(s). b. The complaint shall contain:
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. d. Time of filing complaint. A complaint may be filed at any time within the period prescribed by Section 106 of these Rules. If an accused has been arrested without a warrant the complaint shall be filed no later than the time of arraignment.
a. If it appears from the complaint that an offense has been charged against the defendant, the judge 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 Nation 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 judge has reasonable grounds to believe that the person will not appear on a summons, 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 criminal code alleged to have been violated. It shall order and command the defendant be arrested and brought before the Court to enter a plea. When two or more charges are made against the same person only one warrant shall be necessary. 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 the Court 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. Execution of Arrest Warrants and Service of Summons.
f. Defective warrant. A warrant shall not be quashed or abated nor shall any person in custody for a crime be discharged from such custody because of any technical defect in the warrant.
a. Whenever a law enforcement officer would be empowered to make an arrest without a warrant for an offense 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 an appearance ticket instead of taking the person into custody. Such appearance ticket, 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 Appearance Ticket.
c. Posting of Cash Bail.
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 appearance ticket 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:
c. Pleas.
h. Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.
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 the Judge 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 Court.
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:
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.
A motion to withdraw a plea of guilty shall 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.
Whenever the defendant pleads guilty as a result of a plea arrangement with the prosecutor, the full terms of such agreement shall be disclosed to the Court. 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 an opportunity to withdraw his plea and proceed to trial.
a. Pleadings in criminal proceedings shall consist of the complaint, summons or appearance ticket and the plea of either guilty, nolo contendere, or not guilty. All other pleadings and motions shall be made in accordance with this Rules. b. Motions raising defenses and objections may be made as follows:
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 Nation is 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 Nation to deliver to the court for inspection in chambers, any statements made by a defendant which the Nation intends to introduce in evidence at the trial.
a. The prosecutor 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 prosecution. The prosecution shall, upon request, make available, copies of reports of physical, mental or scientific test or examinations relating to or done on the defendant and memoranda of any oral confession made by the defendant and a list of the witnesses to such confession. b. Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution. Except as provided in section (a), this section does not authorize the discovery or inspection of reports, memoranda or other internal Nation documents made by officers in connection with the investigation or prosecution of the case, or of statements made by Nation witnesses or prospective Nation witnesses, other than the defendant, except as may be provided by law. c. If the defendant seeks discovery and inspection under section (a) or section (b), the defendant shall permit the Nation prosecutor to inspect and copy or photograph scientific or medical reports, books, papers, documents, tangible objects, or copies or portions thereof, which the defendant intends to produce at trial, and which are material to the case and will not place an unreasonable burden on the defense. Except as to scientific or medical reports, this section does not authorize the discovery or inspection of reports, memoranda or other internal defense documents made by the defendant, or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prosecution or defense witnesses, or by prospective prosecution or defense witnesses, to the defendant, the defendant's agents or attorneys. d. The Nation prosecutor and the defendant shall cooperate in discovery and reach agreement on time, place and manner of making the discovery and inspection permitted, so as to avoid the necessity for the court intervention. e. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred or make such other order as is appropriate. Upon motion, the court may permit either party to make such showing, in whole or in part, in the form of a written statement to be inspected privately by the court. If the court enters an order granting relief following such a private showing, the entire text of the statement shall be sealed and preserved in the records of the court in the event of an appeal. f. Discovery under this rule must be completed no later than 20 days after arraignment or at such reasonable later time as the court may permit. g. If, subsequent to compliance with an order issued pursuant to this rule, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under this rule, the party shall promptly notify the other party or the party's attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances. h. The Nation prosecutor and defendant shall be permitted to inspect and copy any juvenile files and records of the defendant for the purpose of discovery and verifying the criminal history of the defendant.
a. In any criminal prosecution brought by the Nation, no statement or report in the possession of the Nation which was made by a Nation witness or prospective Nation witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. b. After a witness called by the Nation has testified on direct examination, the court shall, on motion of the defendant, order the Nation to produce any statement (as hereinafter defined) of the witness in the possession of the Nation which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. c. If the Nation claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness or concerns a confidential informant, the court shall order the Nation to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which d o not relate to the subject matter of the testimony of the witness or relates to the identification of a confidential witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the Nation and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial. d. If the Nation elects not to comply with a n order of the court under subsection (c) or (d) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interest of justice required that a mistrial be declared. e. The term "statement", as used in subsections (c), (d), and (e) of this section in relation to any witness called by the Nation, means:
f. The defendant or his attorney shall reveal by written notice to the court and the prosecutor 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.
a. The defendant and the prosecutor 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 territorial jurisdiction of the Nation Court, and served 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 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. d. It shall not be necessary to tender any fee or mileage allowance to any witness when he is served with a subpoena to attend any criminal case and give testimony either on behalf of the prosecution or the defendant.
a. All trials of offenses shall be by the Court without a jury unless the defendant files a written request for a jury trial and a one hundred dollar ($100.00) jury fee not less than two days after arraignment. The 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 (1) alternate if an alternate juror 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 shall be embodied in a written decision.
a. A jury shall consist of six members. b. jurors shall be drawn from the list of eligible jurors, prepared by the Clerk of the Court in conformance with the Rules of the Court. c. The court shall permit the defendant or his counsel and the prosecutor to examine the jurors and the court itself may make such an examination. d. Challenges for Cause.
d. Challenges regarding jury members may be taken as follows:
e. The alternate juror may 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.
1. The trial of all criminal offenses shall be conducted in the following manner:
2 Mistrials.
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, another Judge will be appointed and upon certifying that he has familiarized himself with the record of the trial, the trial will proceed. 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, another Judge will be appointed to 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.
The admissibility of evidence and the competence and privileges of witnesses shall be governed by the Oneida Indian Nation Rules of Evidence, except as herein otherwise provided.
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.
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.
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 unless he objects 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.
a. The verdict of a jury shall be unanimous and 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 again before a new jury. b. 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. c. 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. d. 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. e. 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.
Any appeal permitted to be taken from a final judgment of the court in a criminal case shall be taken to the Nation Appellate Court. Whenever an interlocutory appeal is permitted in a criminal case, such appeal shall be taken to the Nation Appellate Court. 1. Appeals by defendant, when; Appeals by Prosecution: Transfers to Appellate Court.
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 form shall be signed by the Judge and entered by the Clerk.
a. The court shall order the preparation of the presentence investigation report by the Nation Probation Officer as soon as possible after conviction of the defendant. b. Each presentence report prepared for an offender to be sentenced shall include:
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 Chapter 7 of this Rules. Pending sentence the Court may commit the defendant to jail or continue or alter the bail. Before imposing sentence, the Court shall allow counsel or other persons 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. 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 in accordance with Rule 707 (6).
a. If the defendant is to be sentenced to incarceration, the court shall prepare a judgment form which shall be signed by the court and filed with the clerk. The judgement form shall reflect the conviction, the sentence and the commitment, and shall contain the following:
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.
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.
The Court shall correct an illegal sentence at any time and shall 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 by the Appellate Court. The court may also reduce a sentence upon revocation of probation.
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.
An arrest is taking a person into custody, in a case and in the manner authorized by law.
A law enforcement officer may arrest a person under any of the following circumstances: a. The officer has a warrant commanding that the person be arrested. b. The officer has probable cause to believe that a warrant for the person's arrest has been issued by the Nation Court or in another jurisdiction for a crime committed therein. c. The officer has probable cause to believe that the person is committing or has committed:
d. Any crime that has been or is being committed by the person in the officer's view.
A person who is not a law enforcement officer may arrest another person when:
A police officer may search for dangerous weapons or instruments on any person whom he has legal cause to arrest, whenever he has reasonable cause to believe that the person possesses a dangerous weapon or instrument. If the officer finds a dangerous weapon or instrument, he may take and keep it until the completion of the questioning, when he shall either return it or arrest the person. The arrest may be for the illegal possession of the weapon.
a. In addition to any other detention permitted by law, if a police officer has reasonable cause to believe that a person has a firearm or other deadly weapon or instrument with him in violation of any provision of law relating to firearms or deadly weapons or instruments the police officer may detain that person to determine whether a crime relating to firearms or deadly weapons or instruments has been committed. For purposes of this section "reasonable cause to detain" requires that the circumstances known or apparent to the officer must include specific and articulable facts causing the officer to suspect that some offense relating to firearms or deadly weapons or instruments has taken place or is occurring or is about to occur and that the person to be detained is involved in that offense. The circumstances must be such as would cause any reasonable police officer in like position, drawing when appropriate on his training and experience, to suspect the same offense and the same involvement by the person in question. b. Incidental to any detention permitted pursuant to subdivision (a), a police officer may conduct a limited search of the person for firearms or weapons or instruments if the police officer reasonably concludes that the person detained may be armed and presently dangerous to the peace officer or others. Any firearm or weapon seized pursuant to a valid detention or search pursuant to this section shall be admissible in evidence in any proceeding for any purpose permitted by law. c. This section shall not be construed to otherwise limit the authority of a police officer to detain any person or to make an arrest based on reasonable cause. d. This section shall not be construed to permit a police officer to conduct a detention or search of any person at the person's residence or place of business absent a search warrant or other reasonable cause to detain or search. e. If a firearm or weapon is seized pursuant to this section and the person from whom it was seized owned the firearm or weapon or instrument and is convicted of a violation of any offense relating to the possession of such firearm or weapon, the court shall order the firearm or weapon to be deemed a nuisance and disposed of.
If a person has knowledge or by the exercise of reasonable care, should have knowledge, that he is being arrested by a police officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest.
An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subjected to such restraint as is reasonable for his arrest and detention.
Any police officer who has reasonable cause to believe that the person to be arrested has committed an offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. A police officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or of threatened resistance, of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.
The Judge may orally order a police officer or private person to arrest any one committing or attempting to commit an offense in the presence of the judge.
Any police officer making an arrest may orally summon as many persons as he deems necessary to aid therein.
The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape. The person making the arrest must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested.
An arrest by a police officer acting under a warrant is lawful even though the officer does not have the warrant in his possession at the time of the arrest, but if the person arrested so requests it, the warrant shall be shown to him as soon as practicable.
When the arrest is being made by an officer under the authority of a warrant, after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all necessary and reasonable means to effect the arrest.
To make an arrest, a police officer may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.
a. Upon arrest, the defendant shall be notified that he has the following rights:
b. Prior to conducting a consensual warrantless search, the officer shall specifically inform the person to be searched or the person in charge of the property to be searched that:
c. Whenever possible, the officer should obtain a written statement that the person understood these rights, 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.
When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of: a. Protecting the officer from attack; b. Preventing the person from escaping; or c. Discovering the fruits, instrumentalities, or evidence of the crime.
a. A search warrant shall be issued only upon written statement of any person under oath or affirmation which states facts sufficient to show probable cause that a crime has been or is being committed and which particularly describes a person, place or means of conveyance to be searched and things to be seized. If the Judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, the Judge may issue a search warrant for the seizure of the following:
b. Before ruling on a request for a search warrant, the Judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses that the affiant may produce. Such proceeding shall be recorded and made part of the application for a search warrant. c. Affidavits or sworn testimony in support of the probable cause requirement of this section shall not be made available for examination without a written order of the court, except that such affidavits or testimony when requested shall be made available to the defendant or the defendant's counsel for such disposition as either may desire.
Search warrants issued by the judge may be executed only within the territorial jurisdiction of the Nation.
All search warrants shall show the time and date of issuance. The statement on which the warrant is issued need not be filed with the clerk of the court until the warrant has been executed or has been returned "not executed."
A search warrant shall be issued in duplicate and shall be directed for execution to all law enforcement officers of the Nation, or to any law enforcement officer specifically named therein.
A search warrant shall be executed within ten (10) days from the time of issuance. If the warrant is executed the duplicate copy shall be left with any person from whom any things are seized or if no person is available the copy shall be left at the place from which the things were seized. Any warrant not executed within such time shall be void and shall be returned to the court as "not executed."
A search warrant shall command the person directed to execute the same to search the person, place or means of conveyance particularly described in the warrant and to seize the things particularly described in the warrant.
All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant.
In the execution of a search warrant the person executing the same may reasonably detain and search any person in the place at the time: a. To protect himself from attack, or b. To prevent the disposal or concealment of any things particularly described in the warrant.
A search warrant may be executed at any time of any day or night.
No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.
The sentences prescribed by these Rules shall apply in the case of every offense.
The sentencing policy of the Nation is to strive toward restitution and reconciliation of the offender and the victim and Nation. 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 Nation 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. With consideration of these goals in mind, the provisions of this Chapter shall govern sentencing for criminal offenses.
a. Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
b. This section shall not deprive the court of any authority conferred by any other Nation statute to decree a forfeiture of property, suspend or cancel a license, or impose any other civil penalty as a result of a conviction of a crime. c. Acceptance of probation shall not constitute an acquiescence in the judgment for purpose of appeal and any convicted person may appeal from such conviction, as provided by law, without regard to whether such person has requested probation or suspension of sentence.
The place of imprisonment shall be in a facility as designated by the Court.
The sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other as the court directs at the time of sentence.
a. After a complaint has been filed charging a defendant with commission of a crime and prior to conviction thereof, and after the Nation Prosecutor has considered the factors listed in Section 803, if it appears to the Nation Prosecutor that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the Nation Prosecutor may propose a diversion agreement to the defendant. The terms of each diversion agreement shall be established by the Nation Prosecutor in accordance with section 804. b. The Nation Prosecutor shall adopt written policies and guidelines for the implementation of a diversion program in accordance with these Rules. Such policies and guidelines shall provide for a diversion conference and other procedures in those cases where the Nation Prosecutor elects to offer diversion in lieu of further criminal proceedings on the complaint. c. Each defendant shall be informed in writing of the diversion program and the policies and guidelines adopted by the Nation Prosecutor. The Nation Prosecutor may require any defendant requesting diversion to provide information regarding prior criminal charges, education, work experience and training, family, residence in the community, medical history, including any psychiatric or psychological treatment or counseling, and other information relating to the diversion program. In all cases, the defendant shall be present and shall have the right to be represented by counsel at his own expense at the diversion conference with the Nation Prosecutor.
In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the Nation Prosecutor shall consider at least the following factors among all factors considered: a. The nature of the crime charged and the circumstances surrounding it; b. any special characteristics or circumstances of the defendant; c. whether the defendant is a first-time offender and if the defendant has previously participated in diversion. d. whether there is a probability that the defendant will cooperate with and benefit from diversion; e. whether the available diversion program is appropriate to the needs of the defendant; f. the impact of the diversion of the defendant upon the community; g. recommendations, if any, of the involved law enforcement agency; h. recommendations, if any, of the victim; i. provisions for restitution; and j. any mitigating circumstances.
a. A diversion agreement shall provide that if the defendant fulfills the obligations of the program described therein, as determined by the Nation Prosecutor, the Nation Prosecutor shall act to have the criminal charges against the defendant dismissed with prejudice. The diversion agreement shall include specifically the waiver of all rights under Nation law to a speedy arraignment and a speedy trial. The diversion agreement may include, but is not limited to, provisions concerning payment of restitution, including court costs and diversion costs, residence in a specified facility, maintenance of gainful employment, and participation in programs offering medical, educational, vocational, social and psychological services, corrective and preventive guidance and other rehabilitative services. b. The diversion agreement shall state: (1) The defendant's full name; (2) the defendant's full name at the time the complaint was filed, if different from the defendant's current name; (3) the defendant's sex, race and date of birth; (4) the crime with which the defendant is charged; (5) and, the date the complaint was filed. c. If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of alcohol and substance abuse laws, the diversion agreement shall include a stipulation, agreed to by the defendant and the Nation Prosecutor, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the term of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint. In addition, the agreement shall include a requirement that the defendant:
d. If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of driving under the influence, the diversion agreement may restrict the defendant's driving privileges, in addition to any suspension and to driving only under the following circumstances: (1) In going to or returning from the person's place of employment or schooling; (2) in the course of the person's employment; (3) during a medical emergency; (4) in going to and returning from probation or parole meetings, drug or alcohol counseling or any place the person is required to go to attend an alcohol and drug safety action program; (5) at such times of the day as may be specified by the diversion agreement; and (6) to such places as may be specified by the diversion agreement. Restrictions imposed pursuant to this subsection shall be for a period of not less than 90 days nor more than one year, as specified by the diversion agreement.
No defendant shall be required to enter any plea to a criminal charge as a condition for diversion. No statement made by the defendant or counsel in any diversion conference or in any other discussion of a proposed diversion agreement shall be admissible as evidence in criminal proceedings on crimes charged or facts alleged in the complaint.
a. If the Nation Prosecutor finds at the termination of the diversion period or any time prior thereto that the defendant has failed to fulfill the terms of the specific diversion agreement, the Nation Prosecutor shall inform the court of such finding and the court, after finding that the defendant has failed to fulfill the terms of the specific diversion agreement at a hearing thereon, shall resume the criminal proceedings on the complaint. b. If the defendant has fulfilled the terms of the diversion agreement, the court shall dismiss with prejudice the criminal charges filed against the defendant.
An agreement for diversion shall not exceed one (1) year.
a. Any person charged with an offense shall, at his arraignment, be ordered released pending trial, on his personal recognizance or upon execution of an unsecured appearance bond in an amount specified by the Court subject to the condition that such person shall
b. In determining which conditions of release will reasonably assure appearance, the Court 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 Judge 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 forty-eight hours from the time of the arraignment 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 Judge who imposed them. Unless the conditions of release are amended and the person is thereupon released, the Judge 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 Judge who imposed the condition. Unless the requirement is removed and the person is thereupon released on another condition, the Judge shall set forth in writing the reasons for continuing the requirement. e. The Judge 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. 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 Nation Police or his designee for transmittal to the Court Clerk and obtain his release prior to his arraignment before the Judge.
A person 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 Rule 901 unless the Judge has reason to believe that one or more conditions of release will not reasonably assure that the person will not flee or pose a danger, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained.
Whoever, having been released pursuant to this Chapter willfully fails to appear before the Court as required, shall incur a forfeiture of any security which was given or pledged for his release, and in addition, as punishment may be subject to a fine of $500.00 and a term of imprisonment not to exceed six months.
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, judges, court clerks and any person having the power to arrest or having anything to do with the control of Nation prisoners.
Any person authorized to act as bail bondsmen in the federal or state courts shall be qualified to act as bondsmen in the Nation Court, and shall be liable to the same obligations as in their licensing jurisdiction and comply with all orders and rules of the Nation Court.
a. Any person who has been convicted of a criminal offense in the Nation court may petition the court for the expungement of the conviction if two or more years have elapsed since the person: (1) satisfied the sentence imposed; or (2) was discharged from probation, parole, postrelease supervision, conditional release or a suspended sentence. b. When a petition for expungement is filed, the court shall set a date for a hearing on the petition and shall give notice to the Nation prosecutor. The petition shall state: (1) the defendant's full name; (2) the full name of the defendant at the time of arrest and conviction, if different from the defendant's current name; (3) the defendant's date of birth; (4) the crime for which the defendant was convicted; and (5) the date of the defendant's conviction. There shall be no filing fee for the petition. Any person who may have relevant information about the petitioner may testify at the hearing. The court may inquire into the background of the petitioner. c. At the hearing on the petition, the court shall order petitioner's conviction expunged if the court finds that:
d. After the order of expungement is entered, the petitioner shall be treated as not having been convicted of the crime, except that:
e. Whenever a person is convicted of a crime, pleads guilty and pays a fine for a crime, is placed on parole, postrelease supervision or probation, is assigned to a community correctional services program, is granted a suspended sentence or is released on conditional release, the person shall be informed of the ability to expunge the conviction. f. In any application for employment, license or other civil right or privilege, or any appearance as a witness, a person whose conviction of a crime has been expunged under this statute may state that such person has never been convicted of such crime, but the expungement of a felony conviction does not relieve an individual of complying with federal law relating to the use or possession of firearms by persons convicted of a felony. g. Whenever the record of any conviction has been expunged under the provisions of this section, the custodian of the records of arrest, conviction and incarceration relating to that crime shall not disclose the existence of such records, except when requested by:
In all criminal prosecutions, a victim shall have the following rights:
Nothing in this section shall be construed as creating a basis for vacating a conviction or ground for appellate relief in any criminal case.
a. The Nation Police Department shall establish a procedure to investigate citizens' complaints against the personnel of the department, and shall make a written description of the procedure available to the public. b. Complaints and any reports or findings relating thereto shall be retained for a period of at least five years.
Police officer personnel records and records of information obtained from such records, are confidential and shall not be disclosed in any criminal or civil proceeding. This section shall not apply to investigations or proceedings concerning the conduct of police officers conducted by the Nation Prosecutor.
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