CHAPTER
23
TRIALS
23-01-01
PRESENCE OF THE DEFENDANT
The defendant in a criminal case shall be present in Court at every
stage of the trial, including the impaneling of the jury arid return
of the verdict where trial is by jury, and the imposition of sentence.
23-02-01 RIGHTS
OF DEFENDANT IN CRIMINAL CASES
No person shall twice be placed 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 confrontation of witnesses, the right to compulsory process
for commanding the presence of witnesses, and the right to demand trial
by an impartial jury for any offense or combination of offenses in this
Code.
23-03-01 AFFIDAVIT
OF BIAS AND PREJUDICE OF A JUDGE
Upon the filing of an affidavit of bias and prejudice setting forth
satisfactory proof of facts establishing, that by reasons of bias or
prejudice of the Judge to whom the case is assigned, the defendant cannot
have a fair trial the Judge shall disqualify himself. Any person who
abuses the privilege, by filing affidavits of bias and prejudice without
basis in fact, shall be in Contempt of Court.
23-04-01 TRIAL
BY THE COURT WITHOUT A JURY
All trials shall be before the Court without a jury when the defendant
waives his right to a jury trial. In trials without a jury, the Court
shall hear and determine all issues of fact and the Court shall determine
all issues of law.
23-05-01 JURIES
- ELIGIBILITY FOR JURY DUTY
1. Must
be an adult resident member of the Tribe under the age of eighty-five
(85) years.
2. Must
be able to speak and understand the English language and if the party
so requests, understand the Dakota language.
3. Must
not have been convicted of a felony within one (1) year last prior to
appointment.
4. Any
felony conviction of the appointee must not bear a similarity to the
crime with which the defendant is charged.
5. Must
not be a member of the Tribal Council, a Judge, officer or employee
of the Court or jail, or admitted to practice before the Court.
23-O5-02 JURY
LIST
A list
of at least twenty-one (21) resident enrollees of the Tribe who are
eligible for jury duty shall be prepared and maintained by the Clerk.
Each voting district on the Reservation shall be represented on the
list. The list shall be prepared and maintained with the advice of the
Tribal Executive Committee.
23-O5-03 TRIAL
JURIES - HOW CONSTITUTED
Under the supervision of the presiding Judge, a panel of jurors
shall be drawn by lot from the jury list. A trial jury shall consist
of six (6) qualified jurors selected from a panel of twelve (12) eligible
persons taken from the jury list, none of whom has an interest in the
case, or is related as spouse, parent, brother, sister, child, grandparent,
aunt, uncle, first cousin, niece or nephew to any of the parties or
their attorneys. If the jury panel is exhausted before a sufficient
number of jurors are selected for the trial jury, additional jurors
shall be drawn by lot from the jury list for the panel until a trial
jury is selected.
23-05-04 POWER
TO SUBPOENA JURORS
The Judges of the Court shall have the power to issue subpoenas
to compel the attendance of members of the jury panel and of trial jurors.
Subpoenas shall be signed by the Judge issuing them.
23-05-05 POWER
TO EXCUSE PERSON FROM JURY DUTY
The Judge assigned to the case shall have the power to excuse persons
from jury duty on account of sickness, disability or for other good
cause.
23-05-06 EXAMINATION
OF JURORS
Each party may question members of the panel of prospective jurors
for the purpose of selecting a trial jury.
23-05-07 CHALLENGES
In criminal cases, in addition of disqualifying the prospective
jurors for cause, the prosecution and the defense shall each be entitled
to one peremptory challenge without assigning any cause.
23-O5-08 COMPENSATION
TO JURORS
Each member of the jury panel called to service and each juror who
serves upon a jury shall be entitled to compensation at a rate not to'
exceed five dollars ($5.00) per day and mileage at the rate of ten cents
(.10) per mile. All payments of per diem and mileage shall be paid in
order of presentation from available Court funds:
23-06-01 WITNESSES
AND PRODUCTION OF DOCUMENTARY EVIDENCE
on motion of good cause shown by any party to the case, or on the
Court's own motion the Court shall issue subpoenas to compel the attendance
of, witnesses, or the production of books, records, documents, papers,
and things necessary to the determination of the case, over which the
Court has jurisdiction.
23-06-02 PAYMENT
OF WITNESSES
Each party shall pay for its own witnesses. The Tribe shall
pay all witnesses subpoenaed on its behalf at the rate not to exceed
five dollars ($5.00) per day and mileage at the rate of ten cents (.l0) per
mile upon showing of indigency, the Court shall make appropriate
provisions for the appearance of witnesses on behalf of the indigent
party.
23-07-01 EVIDENCE
23-07-02 ORAL
TESTIMONY
In all trials, the testimony of witnesses shall be given orally
on oath in open Court subject to the right of cross examination.
23-07-03 DOCUMENTARY
AND TANGIBLE EVIDENCE
Documents and other tangible evidence, material and relevant to
the case may be received in evidence if properly identified.
23-07-04 INTOXILYZER
TEST
Under no circumstances shall the results of an intoxilyzer test
be admissible into evidence in any criminal action unless the officer
who administered the test has been issued a certificate of qualification
to administer such a test from either the manufacturer of the intoxilyzer
device or the state criminal laboratory. Also, in order for the
results to be admissible in such a case, a checklist of maintenance
and procedure shall be available for the particular test in question.
23-08-01 ORDER
OF PRESENTATION
The case of the plaintiff or prosecution shall be presented first,
followed by the case of the defendant and by rebuttal and sur-rebuttal
as required.
23-09-01 INSTRUCTIONS
TO JURY
At the close of evidence or at such earlier time during the trial as
the Judge directs, counsel for any party may file with the Judge, written
instructions on the law which the party requests the Judge to deliver
orally to the jury. At the same time, copies of- such requests- shall
be furnished to opposing counsel. The Judge shall inform counsel 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
arguments are completed. No party may assign as error any portion of
the Judge's charges or omission therefrom unless he makes his objection
before the jury retires to consider its verdict. The objection shall
be distinctly stated and the grounds for objection set forth. Opportunity
shall be given to make the objection out of the hearing of the jury.
23-10-01 JURY
VERDICTS IN CRIMINAL CASES
After deliberation in private, the jury in criminal cases shall
return to the Judge in open Court a verdict of "Guilty" or "Not Guilty"
with respect to each defendant. A verdict in 'criminal cases shall be
rendered by the jury unanimously.
23-11-01 COSTS
IN CRIMINAL CASES
The judgement of conviction in criminal cases shall include costs
in an amount not to exceed ten dollars ($10.00).
23-12-01
SEVERABILITY
If any clause, sentence, paragraph, section, or part of this code
shall, for any reason be adjudicated by any Court of competent jurisdiction,
to be invalid or unconstitutional, such judgement shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, section, or part thereof
directly involved in the controversy in which the judgement shall have
been rendered.
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