WHITE
EARTH BAND OF CHIPPEWA RULES OF CRIMINAL PROCEDURE
RULE
1. SCOPE, APPLICATION, GENERAL PURPOSE AND CONSTRUCTION
Rule
1.01 Scope and Application
By
order of the White Earth Reservation Tribal Council, pursuant to the
Constitution of the Minnesota Chippewa Tribe, the White Earth Band of
Chippewa Indians establish these Rules of Criminal Procedure to govern
the procedure in prosecutions for gross misdemeanors, misdemeanors,
and petty misdemeanors in the White Earth Tribal Court. These rules
will govern the procedure of the tribal court to ensure and protect
the rights of parties subject to the jurisdiction of the White Earth
Reservation. Except where expressly provided otherwise, misdemeanors
as referred to in these rules shall include statutes, codes, local ordinances,
charter provisions, rules or regulations punishable either alone or
alternatively by a fine of not more than $5000.00 or by imprisonment
of not more than 1 year.
Rule 1.02 Purpose and Construction
These
rules are intended to provide for the just and speedy determination
of criminal proceedings without the purpose or effect of discrimination
based upon race, color, creed, religion, national origin, sex, marital
status, status with regard to public assistance, disability, handicap
in communication, sexual orientation, or age. They shall be construed
to secure simplicity in procedure, fairness in administration, and the
elimination of unjustifiable expense and delay.
RULE 2. COMPLAINT
Rule
2.01 Contents; Before Whom Made
The
complaint is a written signed statement of the essential facts constituting
the offense charged. With the exception of traffic matters which can
be initiated by tab charge, all criminal prosecutions for violation
of the White Earth Band Law & Order Codes shall be initiated by
complaint.
Except
as provided in Rules 11.06 and 15.08, the complaint shall be made upon
oath before a judge or judicial officer of the tribal court, a clerk
or deputy clerk of court, or a notary public.
Except
as provided in Rules 6.01, Subd. 3, 11.06 and 15.08, the facts establishing
probable cause to believe that an offense has been committed and that
the defendant committed it shall be set forth in writing in the complaint,
and may be supplemented by supporting affidavits or by sworn testimony
of witnesses taken before the issuing judge or judicial officer. If
sworn testimony is taken, a note so stating shall be made on the face
of the complaint by the issuing officer. The testimony shall be recorded
by a reporter or recording instrument and shall be transcribed and filed.
Upon the information presented, the judge or judicial officer shall
determine whether there is probable cause to believe that an offense
has been committed and that the defendant committed it. When the offense
alleged to have been committed is punishable by fine only, the determination
of probable cause may be made by the clerk or deputy clerk of court
if authorized by court order.
Any
complaint, supporting affidavits, or supplementary sworn testimony made
or taken upon oath before the issuing judge or judicial officer pursuant
to this rule may be made or taken by telephone, facsimile transmission,
video equipment, or similar device at the discretion of such judge or
judicial officer.
Rule 2.02 Approval of Prosecuting Attorney
A
complaint shall not be filed or process issued thereon without the written
approval, endorsed on the complaint, of the prosecuting attorney authorized
to prosecute the offense charged, unless such judge or judicial officer
as may be authorized by law to issue process upon the offense certifies
on the complaint that the prosecuting attorney is unavailable and the
filing of the complaint and issuance of process thereon should not be
delayed.
Rule 2.03 Complaint Forms
For
all complaints charging an offense, the prosecuting attorney or such
judge or judicial officer authorized by law to issue process pursuant
to Rule 2.02 shall use an appropriate form authorized and supplied by
the tribal court administrator or a word processor-produced complaint
form in compliance with the supplied form and approved by the tribal
court administrator. If for any reason such form is unavailable, failure
to comply with this rule shall constitute harmless error under Rule
26.01.
RULE 3. WARRANT OR SUMMONS UPON COMPLAINT
Rule
3.01 Issuance
If
it appears from the facts set forth in writing in the complaint and
any supporting affidavits or supplemental sworn testimony that there
is probable cause to believe that an offense has been committed and
that the defendant committed it, a summons or warrant shall be issued.
A summons shall be issued rather than a warrant unless it reasonably
appears that there is a substantial likelihood that the defendant will
fail to respond to a summons, or the defendant’s whereabouts is not
reasonably discoverable, or the arrest of the defendant is necessary
to prevent imminent harm to the defendant or another. If issued, a warrant
for the arrest of the defendant shall be issued to any person authorized
by law to execute it.
The
warrant or summons shall be issued by a judge or judicial officer of
the tribal court. Provided that when the offense is punishable by fine
only, the clerk or deputy clerk of court may also issue the summons
when authorized by court order.
When
the offense is punishable by fine only, a summons shall be issued in
lieu of a warrant.
The
issuing officer shall issue a summons whenever requested to do so by
the prosecuting attorney authorized to prosecute the offense charged
in the complaint.
If
a defendant fails to appear in response to a summons, a warrant shall
issue.
Rule 3.02 Contents of Warrant or Summons
Subd.
1. Warrant. The warrant shall be signed by the issuing officer
and shall contain the name of the defendant, or, if unknown, any name
or description by which the defendant can be identified with reasonable
certainty. It shall describe the offense charged in the complaint,
or the warrant and complaint may be combined in one form. For all
offenses, the amount of bail shall and other conditions of release
may be set by the issuing officer and endorsed on the warrant.
Subd.
2. Directions of Warrant. The warrant shall direct that
the defendant be brought promptly before the tribal court if it is
in session. If the tribal court is not in session, the warrant shall
direct that the defendant be brought before a judge or judicial officer
of the tribal court, without unnecessary delay, and in any event not
later than 36 hours after the arrest exclusive of the day of arrest,
weekends and legal holidays, or as soon thereafter as such judge or
judicial officer is available.
Subd.
3. Summons. The summons shall summon the defendant to appear
at a stated time and place to answer the complaint before the tribal
court and shall be accompanied by a copy of the complaint.
Rule 3.03 Execution or Service of Warrant or Summons; Certification
Subd.
1. By Whom. The warrant shall be executed by an officer
authorized by law. The summons may be served by any officer authorized
to serve a warrant, and if served by mail, it may also be served by
the clerk of the tribal court.
Subd.
2. Territorial Limits. The warrant may be executed or the
summons may be served at any place within the White Earth Reservation
and where otherwise allowed.
Subd.
3. Manner. The warrant shall be executed by the arrest of
the defendant. If the offense charged is a misdemeanor, the defendant
shall not be arrested on Sunday or between the hours of 10:00 o’clock
p.m. and 8:00 o’clock a.m. on any other day except by direction of
the issuing officer, endorsed on the warrant when exigent circumstances
exist or when the person named in the warrant is found on a public
highway or street. The officer need not have the warrant in possession
at the time of the arrest, but shall inform the defendant of the existence
of the warrant and of the charge.
The
summons shall be served on an individual defendant by delivering a
copy to the defendant personally or by leaving it at the defendant’s
house or usual place of abode with some person of suitable age and
discretion then residing therein or by mailing it to the defendant’s
last known address. A summons directed to a corporation shall be issued
and served in the manner prescribed by law for service of a summons
on corporations in civil actions or by mail addressed to the corporation
at its principal place of business or to an agent designated by the
corporation to receive service of process.
Subd.
4. Certification; Unexecuted Warrant or Summons. The officer
executing the warrant shall certify the execution thereof to the tribal
court.
On
or before the date set for appearance the officer or clerk of court
to whom a summons was delivered for service shall certify the service
thereof to the tribal court.
At
the request of the prosecuting attorney made at any time while the
complaint is pending, a warrant returned unexecuted or a summons returned
unserved or a duplicate thereof may be delivered by the issuing officer
to any authorized officer or person for execution or service.
Rule 3.04 Defective Warrant, Summons or Complaint
Subd.
1. Amendment. A person arrested under a warrant or appearing
in response to a summons shall not be discharged from custody or dismissed
because of any defect in form in the warrant or summons, if the warrant
or summons is amended so as to remedy the defect.
Subd.
2. Issuance of New Complaint, Warrant or Summons. During
pretrial proceedings affecting any person arrested under a warrant
or appearing in response to a summons issued upon a complaint, the
proceedings may be continued to permit a new complaint to be filed
and a new warrant or summons issued thereon, provided the prosecuting
attorney promptly moves for such continuance on the ground:
(a) that
the initial complaint does not properly name or describe the defendant
or the offense charged; or
(b) that
on the basis of the evidence presented at the proceeding it appears
that there is probable cause to believe that the defendant has committed
a different offense from that charged in the complaint and that
the prosecuting attorney intends to charge the defendant with such
offense.
If
the proceedings are continued, the new complaint shall be filed and
process issued thereon as soon as possible. In misdemeanor cases,
if the defendant during the continuance is unable to post any bail
which might be required under Rule 6.02, Subd. 1, then the defendant
must be released subject to such non-monetary conditions as deemed
necessary by the tribal court under that rule.
RULE 4. PROCEDURE UPON ARREST UNDER WARRANT
FOLLOWING A COMPLAINT OR WITHOUT A WARRANT
Rule
4.01 Arrest Under Warrant
A
defendant arrested under a warrant issued upon a complaint shall be
taken before the tribal court, judge or judicial officer as directed
in the warrant.
Rule 4.02 Arrest Without a Warrant
Following
an arrest without a warrant:
Subd.
1. Release by Arresting Officer. If the arresting officer
or the officer’s superior determines that further detention is not
justified, such officer or the officer’s superior shall immediately
release the arrested person from custody.
Subd.
2. Citation. The arresting officer or the officer’s superior
may issue a citation to and release the arrested person as provided
by these rules, and must do so if ordered by the prosecuting attorney
or by a judge or judicial officer of the tribal court or by any person
designated by the tribal court to perform that function.
Subd.
3. Notice to Prosecuting Attorney. As soon as practical
after the arrest, the arresting officer or the officer’s superior
shall notify the prosecuting attorney of the arrest.
Subd.
4. Release by Prosecuting Attorney. The prosecuting attorney
may order the arrested person released from custody.
Subd.
5. Appearance Before Judge or Judicial Officer
(1) Before
Whom and When. An arrested person who is not released pursuant
to this rule or Rule 6 shall be brought before the nearest available
judge of the tribal court or a judicial officer of the tribal court.
The defendant shall be brought before such judge or judicial officer
without unnecessary delay, and in any event, not more than 36 hours
after the arrest, exclusive of the day of arrest, Sundays, and legal
holidays, or as soon thereafter as such judge or judicial officer
is available. Provided, however, in misdemeanor cases, a defendant
who is not brought before a judge or judicial officer within the
36-hour limit, shall be released upon citation as provided in Rule
6.01, Subd. 1.
(2) Complaint
Filed; Order of Detention; Gross Misdemeanors Not Charged Under
White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26
(Driving While Under the Influence of Intoxicating Liquor or Drugs). At
or before the time of the defendant’s appearance as required by
Rule 4.02, Subd. 5(1), a complaint shall be presented to the judge
or judicial officer authorized to issue criminal process upon the
offense charged in the complaint. The complaint shall be filed forthwith
except as provided by Rule 28.04 and an order for detention of the
defendant may be issued, provided (1) the complaint contains the
written approval of the prosecuting attorney or the certificate
of the judge or judicial officer as provided by Rule 2.02; and (2)
the judge or judicial officer determines from the facts set forth
separately in writing or with the complaint and any supporting affidavits
or supplemental sworn testimony that there is probable cause to
believe that an offense has been committed and that defendant committed
it. Otherwise, the defendant shall be discharged, the complaint
and any supporting papers shall not be filed, and no record made
of the proceedings.
(3) Complaint
or Tab Charge; Misdemeanors; Gross Misdemeanors Charged Under White
Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving
While Under the Influence of Intoxicating Liquor or Drugs). If
there is no complaint made and filed by the time of the defendant’s
first appearance in tribal court as required by this rule for a
misdemeanor charge or a gross misdemeanor charge under White Earth
Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While
Under the Influence of Intoxicating Liquor or Drugs), the clerk
shall enter upon the records a brief statement of the offense charged
including a citation of the statute, code, rule, regulation, ordinance
or other provision of law which the defendant is alleged to have
violated. This brief statement shall be a substitute for the complaint
and is referred to as a tab charge in these rules. However, in a
misdemeanor case, if the judge orders, or if requested by the person
charged or defense counsel, a complaint shall be made and filed.
If the defendant has not already pled guilty and a complaint has
not been made and filed in a gross misdemeanor case charged under
White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26
(Driving Under the Influence of Intoxicating Liquor or Drugs), the
complaint shall be made, served and filed within 48 hours of the
defendant’s appearance on the tab charge if the defendant is in
custody or within 10 days of the defendant’s appearance on the tab
charge if the defendant is not in custody. Service of such a gross
misdemeanor complaint shall be as provided by Rule 28.02 and may
include service by U.S. mail. In a misdemeanor case, the complaint
shall be made and filed within 48 hours after the demand therefor
if defendant is in custody or within thirty (30) days of such demand
if the defendant is not in custody. If no valid complaint has been
made and filed within the time required by this rule, the defendant
shall be discharged, the proposed complaint, if any, and any supporting
papers shall not be filed, and no record shall be made of the proceedings.
A complaint is valid when it (1) complies with the requirements
of Rule 2, and (2) the judge has determined from the complaint and
any supporting affidavits or supplemental sworn testimony that there
is probable cause to believe that an offense has been committed
and that the defendant committed it. Upon the filing of a valid
complaint in a misdemeanor case, the defendant shall be arraigned.
When a charge has been dismissed for failure to file a valid complaint
and a valid complaint is thereafter filed, a warrant shall not be
issued on that complaint unless a summons has been issued first
and either could not be served, or, if served, the defendant failed
to appear in response thereto.
Rule 4.03. Probable Cause Determination
Subd.
1. Time Limit. When a person arrested without a warrant
is not earlier released pursuant to this rule or Rule 6, a judge or
judicial officer shall make a probable cause determination without
unnecessary delay and in any event within 48 hours from the time of
the arrest including the day of arrest, Saturdays, Sundays and legal
holidays. If the tribal court determines that probable cause does
not exist or if there is no determination as to probable cause within
the time as provided by this rule, the person shall be released immediately.
Subd.
2. Application and Record. The facts establishing probable
cause to believe that an offense has been committed and that the person
arrested committed it shall be submitted upon oath either orally or
in writing. The oath shall be administered by the judge or judicial
officer for any facts submitted orally and may also be administered
by the clerk or deputy clerk of court or a notary public for any facts
submitted in writing. Any oral testimony shall be recorded by reporter
or recording instrument and shall be retained by the judge or judicial
officer or by the judge’s or judicial officer’s designee. Any written
or oral facts or other information submitted upon oath to establish
probable cause may be made or taken by telephone, facsimile transmission,
video equipment or similar device at the discretion of the reviewing
judge or judicial officer. The person requesting a probable cause
determination shall advise the reviewing judge or judicial officer
of any prior request for a probable cause determination on this same
incident or of any prior release of the arrested person on this same
incident for failure to obtain a probable cause determination within
the time limit as provided by this rule.
Subd.
3. Prosecuting Attorney. No request for determination of
probable cause may proceed without the approval, in writing or orally
on the record, of the prosecuting attorney authorized to prosecute
the matter involved, or by affirmation of the applicant upon the application
that the applicant has contacted the prosecuting attorney and the
prosecuting attorney has approved the request, or unless the judge
or judicial officer reviewing probable cause certifies in writing
that the prosecuting attorney is unavailable and the determination
of probable cause should not be delayed. If, in the discretion of
the prosecuting attorney, a complaint complying with Rule 2 is obtained
within the time limit provided by this rule, it shall not be necessary
to obtain any further determination of probable cause under this rule
to justify continued detention of the defendant.
Subd.
4. Determination. Upon the information presented, the tribal
court shall determine whether there is probable cause to believe that
an offense has been committed and that the person arrested committed
the offense. If probable cause is found, the tribal court may set
bail or other conditions of release or release the arrested person
without bail pursuant to Rule 6. If probable cause is not found, the
arrested person shall be released immediately. The determination of
the tribal court shall be in writing and shall indicate whether probable
cause was found, and, if so, for what offense, whether oral testimony
was received concerning probable cause, and the amount of any bail
or other conditions of release which the tribal court may have set.
A written notice of the tribal court’s determination shall be provided
to the arrested person forthwith.
RULE 5. PROCEDURE ON FIRST APPEARANCE
Rule
5.01. Statement to the Defendant
A
defendant arrested with or without a warrant or served with a summons
or citation appearing initially before a judge or judicial officer shall
be advised of the nature of the charge. The tribal court shall first
determine whether the defendant is handicapped in communication. A defendant
is handicapped in communication if, (a) because of either a hearing,
speech or other communications disorder, or (b) because of difficulty
in speaking or comprehending the English language, the defendant cannot
fully understand the proceedings or any charges made against the defendant
or is incapable of presenting or assisting in the presentation of a
defense. If a defendant is handicapped in communication, the judge or
judicial officer shall appoint a qualified interpreter to assist the
defendant throughout the proceedings. The proceedings at which a qualified
interpreter is required are all those covered by the rules which are
attended by the defendant. A defendant who has not previously received
a copy of the complaint, if any, and supporting affidavits and the transcription
of any supplementary testimony, shall be provided with copies thereof.
Upon motion of the prosecuting attorney, the court shall require that
the defendant be booked, photographed, and fingerprinted. In cases of
gross misdemeanors, the defendant shall not be called upon to plead.
The
judge, judicial officer, or other duly authorized personnel shall advise
the defendant substantially as follows:
(a) that
the defendant is not required to say anything or submit to interrogation
and that anything the defendant says may be used against the defendant
in this or any subsequent proceeding;
(b) that
the defendant has a right to counsel in all subsequent proceedings,
including police line-ups and interrogations, and if the defendant
appears without counsel and is financially unable to afford counsel,
that counsel will forthwith be appointed without cost to the defendant
charged with an offense punishable upon conviction by incarceration;
(c) that
the defendant has a right to communicate with defense counsel and
that a continuance will be granted if necessary to enable defendant
to obtain or speak to counsel;
(d)
that the defendant has a right to a jury trial or a trial to the court;
(e) that
if the offense is a misdemeanor, the defendant may either plead guilty
or not guilty, or demand a complaint prior to entering a plea;
(f) that
if the offense is a gross misdemeanor punishable under White Earth
Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While
Under the Influence of Intoxicating Liquor or Drugs) and a complaint
has not yet been made and filed, a complaint must be issued within
10 days if the defendant is not in custody or within 48 hours if the
defendant is in custody.
The
judge, judicial officer, or other duly authorized personnel may advise
a number of defendants at once of these rights, but each defendant shall
be asked individually before arraignment whether the defendant heard
and understood these rights as explained earlier.
Rule 5.02. Appointment of Counsel
Subd.
1. Gross Misdemeanors. If the defendant is not represented
by counsel and is financially unable to afford counsel, the judge
or judicial officer shall appoint counsel for the defendant.
Subd.
2. Misdemeanors. Unless the defendant charged with a misdemeanor
punishable upon conviction by incarceration voluntarily waives counsel
in writing or on the record, the tribal court shall appoint counsel
for the defendant who appears without counsel and is financially unable
to afford counsel. The tribal court shall not accept the waiver unless
the tribal court is satisfied that it is voluntary and has been made
by the defendant with full knowledge and understanding of the defendant’s
rights. If the tribal court is not so satisfied, it shall not proceed
until the defendant is provided with counsel of either the defendant’s
choosing or by assignment.
Notwithstanding
the waiver, the tribal court may designate counsel to be available
to assist and to consult with a defendant who cannot afford counsel
at all stages of the proceedings.
A
defendant who proceeds at the arraignment without counsel does not
waive the future right to counsel and the tribal court must inform
the defendant that the defendant continues to have that right at all
stages of the proceeding. Provided that for misdemeanor offenses not
punishable upon conviction by incarceration, the tribal court may
appoint an attorney for a defendant financially unable to afford counsel
when requested by the defendant or interested counsel or when such
appointment appears advisable to the tribal court in the interests
of justice to the parties.
Subd.
3. Standard of Indigency. A defendant is financially unable
to obtain counsel if financially unable to obtain adequate representation
without substantial hardship for the defendant or the defendant’s
family.
Subd.
4. Financial Inquiry. An inquiry to determine financial
eligibility of a defendant for the appointment of counsel shall be
made whenever possible prior to the court appearance and by such persons
as the tribal court may direct. This inquiry may be combined with
the pre-release investigation provided for in Rule 6.02, Subd. 3.
Subd.
5. Partial Eligibility and Reimbursement. The ability to
pay part of the cost of adequate representation at any time while
the charges are pending against a defendant shall not preclude the
appointment of counsel for the defendant. The tribal court may require
a defendant, to the extent able, to compensate the governmental unit
charged with paying the expense of appointed counsel.
Rule 5.03. Date of Rule 8 Appearance in Tribal Court; Consolidation
of Appearances Under Rule 5 and Rule 8
If
the defendant is charged with a gross misdemeanor and has not waived
the right to a separate appearance under Rule 8 as provided in this
rule, the judge or judicial officer shall set a date for such appearance
before the tribal court in accordance with a schedule or other directive
established by order of the tribal court, which appearance date shall
not be later than fourteen (14) days after the defendant’s initial appearance
before such judge or judicial officer under Rule 5.
The
defendant shall be informed of the time and place of such appearance
and ordered to appear as scheduled. The time for appearance may be extended
by the tribal court for good cause.
Notwithstanding
any rule to the contrary, in gross misdemeanor cases, the defendant
may be permitted to waive the separate appearance otherwise required
by this rule and Rule 8. Any such waiver shall be made either in writing
or orally on the record in open court. If a separate appearance under
Rule 8 is waived by the defendant, all of the functions and procedures
provided for by both Rule 5 and Rule 8 shall take place at the one consolidated
appearance.
Rule 5.04. Plea in Misdemeanor Cases
Subd.
1. Entry of Plea. When a valid complaint has been made and
filed, or a brief statement entered on the record as authorized under
Rule 4.02, Subd. 5(3), the defendant shall be called upon to plead
or be given time to plead. The arraignment shall be conducted in open
court. A defendant may appear by counsel and a corporation shall appear
by counsel or by a duly authorized officer.
Subd.
2. Guilty Plea. If the defendant enters a plea of guilty,
the presentencing and sentencing procedure provided by these rules
shall be followed.
Subd.
3. Not Guilty Plea and Jury Trial. If the defendant enters
a plea of not guilty to a charge on which entitled to a jury trial,
the defendant shall be asked to exercise or waive that right. The
defendant may waive jury trial either personally in writing or orally
on the record in open court. If the defendant fails to waive or demand
a jury trial, a jury trial demand shall be entered in the record.
Subd.
4. Demand or Waiver of Evidentiary Hearing. If the defendant
pleads not guilty and a notice of evidence and identification procedures
has been given by the prosecution as required by Rule 7.01, the defendant
and the prosecution shall each either waive or demand an evidentiary
hearing as provided by Rule 12.04. Such demand or waiver may be made
either orally on the record or in writing and shall be made at the
first court appearance after the notice has been given by the prosecution.
Subd.
5. Special Appearances Abolished. Special appearances are
abolished and any challenge to the personal jurisdiction of the tribal
court shall be decided as provided in Rule 10.02.
Rule 5.05. Bail or Release
The
judge or judicial officer shall set and advise the defendant of the
conditions under which the defendant may be released under these rules
for appearance.
Rule 5.06. Record
Minutes
of the proceedings shall be kept unless the judge or judicial officer
directs that a verbatim record thereof shall be made, and provided that
any plea of guilty to an offense punishable by incarceration shall comply
with the requirements of Rule 13.05 and Rule 15.09.
RULE 6. PRE-TRIAL RELEASE
Rule
6.01 Release on Citation by Law Enforcement Officer Acting Without
Warrant
Subd.
1. Mandatory Issuance of Citation.
(1) For
Misdemeanors.
(a) By
Arresting Officers. Law enforcement officers acting without
a warrant, who have decided to proceed with prosecution, shall
issue citations to persons subject to lawful arrest for misdemeanors,
unless it reasonably appears to the officer that arrest or detention
is necessary to prevent bodily harm to the accused or another
or further criminal conduct, or that there is a substantial likelihood
that the accused will fail to respond to a citation. The citation
may be issued in lieu of an arrest, or if an arrest has been made,
in lieu of continued detention. If the defendant is detained,
the officer shall report to the tribal court the reasons for the
detention. Ordinarily, for misdemeanors not punishable by incarceration,
a citation shall be issued.
(b) At
Place of Detention. When a person is arrested without a warrant
for a misdemeanor or misdemeanors and is brought to a police station
or jail, the officer in charge of the police station or jail shall
issue a citation in lieu of continued detention unless it reasonably
appears to the officer that detention is necessary to prevent
bodily harm to the accused or another or further criminal conduct
or that there is a substantial likelihood that the accused will
fail to respond to a citation. If the defendant is detained, the
officer in charge shall report to the tribal court the reasons
for the detention. Provided, however, that for misdemeanors not
punishable by incarceration, a citation shall be issued.
(2) For
Misdemeanors and Gross Misdemeanors When Ordered by Prosecuting
Attorney or Judge. An arresting officer acting without a
warrant or the officer in charge of a police station or other authorized
place of detention to which a person arrested without a warrant
has been brought shall issue a citation in lieu of continued detention
if so ordered by the prosecuting attorney or by the judge of tribal
court or by any person designated by the tribal court to perform
that function.
Subd.
2. Permissive Authority to Issue Citations for Gross Misdemeanors. When
a law enforcement officer acting without a warrant is entitled to
make an arrest for a gross misdemeanor or a person arrested without
a warrant for a gross misdemeanor is brought to a police station or
jail, the officer in charge of the police station or jail may issue
a citation in lieu of arrest or in lieu of continued detention if
an arrest has been made, unless it reasonably appears to the officer
that arrest or detention is necessary to prevent bodily harm to the
accused or another or further criminal conduct or that the accused
may fail to appear in response to the citation.
Subd.
3. Form of Citation. A citation shall direct the accused
to appear before the tribal court at a specified time and place or
contact the court to schedule an appearance. The citation shall state
that if the defendant fails to appear at or contact the tribal court
as directed in response to the citation, a warrant of arrest may issue.
A summons or warrant issued because of a defendant’s failure to respond
to a citation may be based upon sworn facts establishing probable
cause as set forth in or with the citation and attached to the complaint.
Subd.
4. Lawful Searches. The issuance of a citation does not
affect a law enforcement officer’s authority to conduct an otherwise
lawful search.
Subd.
5. Persons in Need of Care. Notwithstanding the issuance
of a citation, a law enforcement officer may take the cited person
to an appropriate medical facility if that person appears mentally
or physically incapable of self care.
Rule 6.02. Release by Judge, Judicial Officer or Court
Subd.
1. Conditions of Release. Any person charged with an offense
shall be released without bail pending the first court appearance
when ordered by the prosecuting attorney, the judge of tribal court,
or by any person designated by the tribal court to perform that function.
Upon appearance before a judge, judicial officer, or the tribal court,
a person so charged shall be ordered released pending trial or hearing
on personal recognizance or on order to appear or upon the execution
of an unsecured appearance bond in a specified amount, unless the
tribal court, judge or judicial officer determines, in the exercise
of discretion, that such a release will be inimical of public safety
or will not reasonably assure the appearance of the person as required.
When such a determination is made, the tribal court, judge or judicial
officer shall, either in lieu of or in addition to the above methods
of release, impose the first of the following conditions of release
which will reasonably assure the appearance of the person for trial
or hearing, or when otherwise required, or, if no single condition
gives that assurance, any combination of the following conditions:
(a) place
the person in the care and supervision of a designated person or
organization agreeing to supervise the person;
(b) place
restrictions on the travel, association or place of abode during
the period of release;
(c) require
the execution of an appearance bond in an amount set by the tribal
court with sufficient solvent sureties, or the deposit of cash or
other sufficient security in lieu thereof; or
(d) impose
any other condition deemed reasonably necessary to assure appearance
as required, including a condition requiring that the person return
to custody after specified hours.
In
any event, the tribal court shall also fix the amount of money bail
without other conditions upon which the defendant may obtain release.
The
defendant’s release shall be conditioned on appearance at trial
or hearing, including the omnibus hearing, evidentiary hearing and
the pretrial conference prescribed by these rules, or at the taking
of any deposition that may be ordered by the tribal court.
Subd.
2. Determining Factors. In determining which conditions
of release will reasonably assure such appearance, the judge, judicial
officer or tribal 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,
length of residence in the community, record of convictions, record
of appearance at court proceedings or flight to avoid prosecution,
and the safety of any other person or of the community.
Subd.
3. Pre-Release Investigation. In order to acquire the information
required for determining the conditions of release, an investigation
into the accused’s background may be made prior to or contemporaneously
with the defendant’s appearance before the tribal court, judge or
judicial officer. The tribal court’s probation service or other qualified
facility available to the court may be directed to conduct the investigation.
Any information obtained from the defendant in response to the inquiry
during the course of the investigation and any evidence derived from
such information shall not be used against the defendant at trial.
This shall not preclude the use of evidence obtained by other independent
investigation.
Subd.
4. Review of Conditions of Release. Upon motion, the tribal
court shall review the conditions of release.
Rule 6.03 Violation of Conditions of Release
Subd.
1. Warrant. Upon an application of the prosecuting attorney
alleging that a defendant has violated the conditions of release,
the judge or judicial officer of the tribal court may issue a warrant
directing that the defendant be arrested and taken forthwith before
such judge or judicial officer of the tribal court. A summons directing
the defendant to appear before such judge or judicial officer of the
tribal court at a specified time shall be issued instead of a warrant
unless it reasonably appears that there is a substantial likelihood
that the defendant will fail to respond to the summons or when the
whereabouts of the defendant is unknown.
Subd.
2. Arrest Without Warrant. A law enforcement officer having
probable cause to believe that a released defendant has violated the
conditions of release may, if it is impracticable to secure a warrant
or summons as provided in this rule, arrest the defendant and take
the defendant forthwith before such judge or judicial officer of the
tribal court. In a misdemeanor case, a citation shall be issued in
lieu of an arrest or continued detention unless it reasonably appears
that the arrest or detention is necessary to prevent bodily harm to
the accused or another or to prevent further criminal conduct, or
that there is a substantial likelihood that the defendant will fail
to respond to the citation.
Subd.
3. Hearing. After hearing and upon finding that the defendant
has violated conditions imposed on release, the judge or judicial
officer of the tribal court shall continue the release upon the same
conditions or impose different or additional conditions for defendant’s
possible release as provided for in Rule 6.02, Subd. 1.
Subd.
4. Commission of Crime. When it is shown that a complaint
has been filed charging a defendant with the commission of a crime
while released pending adjudication in tribal court of a prior charge,
the tribal court may, after notice and hearing, review and revise
the conditions of possible release as provided for in Rule 6.02, Subd.
1.
Rule 6.04 Forfeiture
The
procedure for forfeiture of an appearance bond shall be as follows:
When
a person in a criminal prosecution is under bond to appear and answer
and fails to perform the conditions of the bond, the law enforcement
authorities shall apprehend that person in the manner provided in Rule
6.03 of these rules. After default on a bond, a surety may, with permission
of the court, pay to the court administrator the amount for which the
surety was bound as surety, with costs as the court may direct. When
payment is made, the surety is fully discharged of any obligation under
the bond. The court may forgive or reduce the bond forfeiture according
to the circumstances of the case and the situation of the party on any
terms and conditions it considers just and reasonable.
Rule 6.05 Supervision of Detention
The
tribal court shall exercise supervision over the detention of defendants
within the tribal court’s jurisdiction for the purpose of eliminating
all unnecessary detention. The officer in charge of a detention facility
shall make at least biweekly reports to the prosecuting attorney and
to the tribal court listing each defendant who has been held in custody
pending criminal charges, arraignment, trial, sentencing, or revocation
of probation for a period in excess of ten (10) days in gross misdemeanor
cases, and in excess of two (2) days in misdemeanor cases.
Rule 6.06 Trial Date in Misdemeanor Cases
A
defendant shall be tried as soon as possible after entry of a not guilty
plea. On demand made in writing or orally on the record by the prosecuting
attorney or the defendant, the trial shall be commenced within sixty
(60) days from the date of the demand unless good cause is shown upon
the prosecuting attorney’s or the defendant’s motion or upon the tribal
court’s initiative why the defendant should not be brought to trial
within that period. The time period shall not begin to run earlier than
the date of the not guilty plea. Where the defendant is in custody,
trial shall be commenced within ten (10) days of demand and if not so
commenced, the defendant shall be released subject to such non-monetary
release conditions as may be required by the tribal court under Rule
6.02, Subd. 1.
RULE 7. NOTICE BY PROSECUTING ATTORNEY OF EVIDENCE AND IDENTIFICATION
PROCEDURES; COMPLETION OF DISCOVERY
Rule
7.01 Notice of Evidence and Identification Procedures
In
any case where a jury trial is to be held, when the prosecution has
(1) any evidence against the defendant obtained as a result of a search,
search and seizure, wiretapping, or any form of electronic or mechanical
eavesdropping; (2) any confessions, admissions or statements in the
nature of confessions made by the defendant; (3) any evidence against
the defendant discovered as a result of confessions, admissions or statements
in the nature of confessions made by the defendant; or (4) when in the
investigation of the case against the defendant, any identification
procedures were followed, including but not limited to lineups or other
observations of the defendant and the exhibition of photographs of the
defendant or of any other persons, the prosecuting attorney shall notify
the defendant or defense counsel of such evidence and identification
procedures. In gross misdemeanor cases notice shall be given in writing
on or before the date set for the defendant’s initial appearance in
the tribal court as provided by Rule 5.03. In misdemeanor cases, notice
shall be given either in writing or orally on the record in tribal court
on or before the date set for the defendant’s pretrial conference if
one is scheduled or seven (7) days before trial if no pretrial conference
is to be held.
Such
written notice may be given either personally or by ordinary mail to
the defendant’s or defense counsel’s last known residential or business
address or by leaving it at such address with a person of suitable age
and discretion then residing or working there.
Rule 7.02 Notice of Additional Offenses
The
prosecuting attorney shall notify the defendant or defense counsel in
writing of any additional offenses, the evidence of which may be offered
at the trial under any exceptions to the general exclusionary rule.
In cases of gross misdemeanors, the notice shall be given at or before
the omnibus hearing under Rule 11 or as soon after the omnibus hearing
as the offenses become known to the prosecuting attorney. In misdemeanor
cases, the notice shall be given at or before the pretrial conference
under Rule 12 if held or as soon thereafter as the offense becomes known
to the prosecuting attorney. If no pretrial conference is held, then
the notice shall be given at least seven (7) days before trial or as
soon thereafter as known to the prosecuting attorney. Such additional
offenses shall be described with sufficient particularity to enable
the defendant to prepare for trial. The notice need not include offenses
for which the defendant has been previously prosecuted or those that
may be offered in rebuttal of the defendant’s character witnesses or
as a part of the occurrence or episode out of which the offense charged
against defendant arose.
Rule 7.03 Completion of Discovery
Before
the date set for the omnibus hearing in gross misdemeanor cases, the
prosecution and defendant shall complete the discovery that is required
by Rule 9.01 and Rule 9.02 to be made without the necessity of an order
of the tribal court.
In
misdemeanor cases, without order of the tribal court the prosecuting
attorney on request of the defendant or defense counsel shall, prior
to arraignment or at any time before trial, permit the defendant or
defense counsel to inspect the police investigatory reports. Any other
discovery shall be by consent of the parties or by motion to the tribal
court.
RULE 8. DEFENDANT’S INITIAL APPEARANCE BEFORE THE TRIBAL COURT FOLLOWING
THE COMPLAINT OR TAB CHARGE IN GROSS MISDEMEANOR CASES
Rule
8.01 Place of Appearance and Arraignment
The
defendant’s initial appearance following the complaint or, for a gross
misdemeanor under White Earth Band Motor Vehicles & Highways Code
Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor
or Drugs), a tab charge under this rule shall be held in the tribal
court.
The
defendant shall be arraigned upon the complaint or the complaint as
it may be amended or, for gross misdemeanors under White Earth Band
Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under
the Influence of Intoxicating Liquor or Drugs), the tab charge, but
may only enter a plea of guilty at that time. If the defendant does
not wish to plead guilty, no other plea shall be called for and the
arraignment shall be continued until the omnibus hearing when pursuant
to Rule 11.09 the defendant shall plead to the complaint or the complaint
as amended or be given additional time within which to plead.
Rule 8.02 Plea of Guilty
At
an initial appearance under this rule, the defendant may enter a plea
of guilty to a gross misdemeanor or misdemeanor as permitted under Rule
15. If the defendant enters a plea of guilty, the pre-sentencing and
sentencing procedures provided by these rules shall be followed.
Rule 8.03 Demand or Waiver of Hearing
If
the defendant does not plead guilty, the defendant and the prosecution
shall each either waive or demand a hearing as provided by Rule 11.02
on the admissibility at trial of any of the evidence specified in the
notice given by the prosecuting attorney under Rule 7.01 or the admissibility
of any evidence obtained as the result of such evidence.
Rule 8.04 Plea and Time and Place of Omnibus Hearing
(a) If
the defendant does not plead guilty, the omnibus hearing on the issues
as provided for by Rules 11.03 and 11.04 shall be held within the
time hereinafter specified.
(b) If
hearing on either of the issues set forth in Rule 8.03 is demanded,
the omnibus hearing shall also include the issues provided for by
Rule 11.02.
(c) The
omnibus hearing provided for by Rule 11 shall be scheduled for a date
not later than twenty-eight (28) days after the defendant’s appearance
before the tribal court under this rule. The tribal court may extend
such time for good cause related to the particular case upon motion
of the prosecuting attorney or defendant or upon the court’s initiative.
Rule 8.05 Record
A
verbatim record shall be made of the proceedings at the defendant’s
initial appearance before the tribal court under this rule.
Rule 8.06 Conditions of Release
In
accordance with the rules governing bail or release, the tribal court
may continue or amend those conditions for defendant’s release set by
the tribal court previously.
RULE 9. DISCOVERY IN GROSS MISDEMEANOR CASES
Rule
9.01 Disclosure by Prosecution
Subd.
1. Disclosure by Prosecution Without Order of Tribal Court.
Without order of the tribal court and except as provided in Rule 9.01,
Subd. 3, the prosecuting attorney on request of defense counsel shall,
before the date set for omnibus hearing provided for by Rule 11, allow
access at any reasonable time to all matters within the prosecuting
attorney’s possession or control which relate to the case and make
the following disclosures:
(1) Trial
Witnesses; Other Persons.
(a) The
prosecuting attorney shall disclose to defense counsel the names
and addresses of the persons intended to be called as witnesses
at the trial together with their prior record of convictions,
if any, within the prosecuting attorney’s actual knowledge. The
prosecuting attorney shall permit defense counsel to inspect and
reproduce such witnesses’ relevant written or recorded statements
and any written summaries within the prosecuting attorney’s knowledge
of the substance of relevant oral statements made by such witnesses
to prosecution agents.
(b) The
fact that prosecution has supplied the name of a trial witness
to defense counsel shall not be commented on in the presence of
the jury.
(c) The
prosecuting attorney shall disclose to defense counsel the names
and the addresses of persons having information relating to the
case.
(2) Statements. The
prosecuting attorney shall disclose and permit defense counsel to
inspect and reproduce any relevant written or recorded statements
which relate to the case within the possession or control of the
prosecution, the existence of which is known by the prosecuting
attorney, and shall provide defense counsel with the substance of
any oral statements which relate to the case.
(3) Documents
and Tangible Objects. The prosecuting attorney shall disclose
and permit defense counsel to inspect and reproduce books, transcripts,
law enforcement officer reports, reports on prospective jurors,
papers, documents, photographs and tangible objects which relate
to the case and the prosecuting attorney shall also permit defense
counsel to inspect and photograph buildings or places which relate
to the case.
(4) Reports
of Examinations and Tests. The prosecuting attorney shall
disclose and permit defense counsel to inspect and reproduce any
results or reports of physical or mental examinations, scientific
tests, experiments or comparisons made in connection with the particular
case. The prosecuting attorney shall allow the defendant to have
reasonable tests made. If a scientific test or experiment of any
matter, except those conducted under White Earth Band Motor Vehicles
& Highways Code, may preclude any further tests or experiments,
the prosecuting attorney shall give the defendant reasonable notice
and an opportunity to have a qualified expert observe the test or
experiment.
(5) Criminal
Record of Defendant and Defense Witnesses. The prosecuting
attorney shall inform defense counsel of the records of prior convictions
of the defendant and of any defense witnesses disclosed under Rule
9.02, Subd. 1(3)(a) that are known to the prosecuting attorney provided
the defense counsel informs the prosecuting attorney of any such
records known to the defendant.
(6) Exculpatory
Information. The prosecuting attorney shall disclose to defense
counsel any material or information within the prosecuting attorney’s
possession and control that tends to negate or reduce the guilt
of the accused as to the offense charged.
(7) Scope
of Prosecutor’s Obligations. The prosecuting attorney’s obligations
under this rule extend to material and information in the possession
or control of members of the prosecution staff and of any others
who have participated in the investigation or evaluation of the
case and who either regularly report or with reference to the particular
case have reported to the prosecuting attorney’s office.
Subd.
2. Discretionary Disclosure Upon Order of Court.
(1) Matters
Possessed by Other Governmental Agencies. Upon motion
of the defendant, the tribal court for good cause shown shall require
the prosecuting attorney, except as provided by Rule 9.01, Subd.
3, to assist the defendant in seeking access to specified matters
relating to the case which are within the possession or control
of an official or employee of any tribal governmental agency, but
which are not within the control of the prosecuting attorney. The
prosecuting attorney shall use diligent good faith efforts to cause
the official or employee to allow the defendant access at any reasonable
time and in any reasonable manner to inspect, photograph, copy,
or have reasonable tests made.
(2) Nontestimonial
Evidence from Defendant on Defendant’s Motion. Upon motion
of the defendant who has been arrested, cited or charged under these
rules, the tribal court for good cause shown may require the prosecuting
attorney to provide for defendant to participate in a lineup, to
speak for identification by witnesses or to participate in other
procedures which would require a court order to accomplish.
(3) Other
Relevant Material. Upon motion of the defendant, the trial
court at any time before trial may, in its discretion, require the
prosecuting attorney to disclose to defense counsel and to permit
the inspection, reproduction or testing of any relevant material
and information not subject to disclosure without order of court
under Rule 9.01, Subd. 1, provided, however, a showing is made that
the information may relate to the guilt or innocence of the defendant
or negate the guilt or reduce the culpability of the defendant as
to the offense charged. If the motion is denied, the tribal court
upon application of the defendant shall inspect and preserve any
such relevant material and information.
Subd.
3. Information Non-Discoverable. The following information
shall not be discoverable by the defendant:
(1) Work
Product.
(a) Opinions,
Theories or Conclusions. Unless otherwise provided by these
rules, legal research, records, correspondence, reports or memoranda
to the extent that they contain the opinions, theories or conclusions
of the prosecuting attorney or members of the prosecution staff
or officials or official agencies participating in the prosecution.
(b) Reports. Except
as provided in Rules 9.01, Subd. 1(1) to (6), reports, memoranda
or internal documents made by the prosecuting attorney or members
of the prosecution staff or by prosecution agents in connection
with the investigation or prosecution of the case against the
defendant.
(2) Prosecution
Witnesses Under Prosecuting Attorney’s Certificate. The information
relative to the witnesses and persons described in Rule 9.01, Subd.
1(1) and 1(2) shall not be subject to disclosure if the prosecuting
attorney files a written certificate with the trial court that to
do so may endanger the integrity of a continuing investigation or
subject such witnesses or persons or others to physical harm or
coercion, provided, however, that non-disclosure under this rule
shall not extend beyond the time the witnesses or persons are sworn
to testify at the trial.
Rule 9.02. Disclosure by Defendant.
Subd.
1. Information Subject to Discovery Without Order of Court. Without
order of the tribal court, the defendant on request of the prosecuting
attorney shall, before the date set for the omnibus hearing provided
for by Rule 11, make the following disclosures:
(1) Documents
and Tangible Objects. The defendant shall disclose and permit
the prosecuting attorney to inspect and reproduce books, papers, documents,
photographs, and tangible objects which the defendant intends to introduce
in evidence at the trial or concerning which the defendant intends
to offer evidence at the trial, and shall also permit the prosecuting
attorney to inspect and reproduce reports on prospective jurors and
to inspect and photograph buildings or places concerning which the
defendant intends to offer evidence at trial.
(2) Reports
of Examinations and Tests. The defendant shall disclose and
permit the prosecuting attorney to inspect and reproduce any results
or reports of physical or mental examinations, scientific tests, experiments
and comparisons made in connection with the particular case within
the possession or control of the defendant which the defendant intends
to introduce in evidence at the trial or which were prepared by a
witness whom the defendant intends to call at the trial when the results
or reports relate to testimony of the witness.
(3) Notice
of Defense and Defense Witnesses and Criminal Record.
(a) Notice
of Defense. The defendant shall inform the prosecuting attorney
in writing of any defense, other than that of not guilty, on which
the defendant intends to rely at the trial, including but not limited
to the defense of self-defense, entrapment, mental illness or deficiency,
duress, alibi, double jeopardy, statute of limitations, collateral
estoppel, or intoxication. The defendant shall supply the prosecuting
attorney with the names and addresses of persons whom the defendant
intends to call as witnesses at the trial together with their record
of convictions, if any, within the defendant’s actual knowledge.
A
defendant who gives notice of intent to rely on the defense of mental
illness or mental deficiency shall also notify the prosecuting attorney
of any intent to additionally rely on the defense of not guilty.
(b) Statements
of Defense and Prosecution Witnesses. The defendant shall permit
the prosecuting attorney to inspect and reproduce any relevant written
or recorded statements of the persons whom the defendant intends to
call as witnesses at the trial and also statements of prosecution
witnesses obtained by the defendant, defense counsel, or persons participating
in the defense, and which are within the possession or control of
the defendant and shall permit the prosecuting attorney to inspect
and reproduce any written summaries within the defendant’s knowledge
of the substance of any oral statements made by such witnesses to
defense counsel or obtained by the defendant at the direction of defense
counsel.
(c) Alibi. If
the defendant intends to offer evidence of an alibi, the defendant
shall also inform the prosecuting attorney of the specific place or
places where the defendant contends to have been when the alleged
offense occurred and shall inform the prosecuting attorney of the
names and addresses of the witnesses the defendant intends to call
at the trial in support of the alibi.
As
soon as practicable, the prosecuting attorney shall then inform the
defendant of the names and addresses of the witnesses the prosecuting
attorney intends to call at the trial to rebut the testimony of any
of the defendant’s alibi witnesses.
(d) Criminal
Record. Defense counsel shall inform the prosecuting attorney of
any prior convictions of the defendant provided the prosecuting attorney
informs defense counsel of the record of prior convictions known to
the prosecuting attorney.
(e) Entrapment. A
defendant who gives notice of intention to rely on the defense of
entrapment, shall include in the notice a statement of the facts forming
the basis for the defense, and elect whether to have the defense submitted
to the tribal court or to the jury.
The
entrapment defense may not be submitted to the tribal court unless
the defendant waives jury trial upon that issue as provided by Rule
22.01, Subd. 1(2).
If
the entrapment defense is submitted to the tribal court, the hearing
thereon shall be included in the omnibus hearing under Rule 11 or
in the evidentiary hearing provided for by Rule 12. The tribal court
shall make findings of fact and conclusions of law on the record supporting
its decision.
Subd.
2. Discovery Upon Order of Court.
(1) Disclosures
Permitted. Upon motion of the prosecuting attorney with notice
to defense counsel and a showing that one or more of the discovery
procedures hereafter described will be of material aid in determining
whether the defendant committed the offense charged, the trial court
at any time before trial may, subject to constitutional limitations,
order a defendant to:
(a) Appear
in a lineup;
(b) Speak
for identification by witnesses to an offense or for the purpose
of taking voice prints;
(c) Be
fingerprinted or permit the defendant’s palm prints or footprints
to be taken;
(d) Permit
measurements of the defendant’s body to be taken;
(e) Pose
for photographs not involving re-enactment of a scene;
(f) Permit
the taking of samples of the defendant’s blood, hair, saliva,
urine, and other materials of the defendant’s body which involve
no unreasonable intrusion thereof; provided, however, that the
tribal court shall not permit a blood test to be taken except
upon a showing of probable cause to believe that the test will
aid in establishing the guilt of the defendant;
(g) Provide
specimens of the defendant’s handwriting; and
(h) Submit
to reasonable physical or medical inspection of the defendant’s
body.
(2) Notice
of Time and Place of Disclosures. Whenever the personal appearance
of the defendant is required for the foregoing purposes, reasonable
notice of the time and place thereof shall be given by the prosecuting
attorney to defense counsel.
(3) Medical
Supervision. Blood tests shall be conducted under medical
supervision, and the tribal court may require medical supervision
for any other test ordered pursuant to this rule when the tribal
court deems such supervision necessary. Upon motion of the defendant,
the tribal court may order the defendant’s appearance delayed for
a reasonable time or may order that it take place at the defendant’s
residence, or some other convenient place.
(4) Notice
of Results of Disclosure. Unless otherwise ordered by the
tribal court, the prosecuting attorney, within five (5) days from
the date the results of the discovery procedures provided by this
rule become known, shall make available to defense counsel a report
of the results.
(5) Other
Methods Not Excluded. The discovery procedures provided for
by this rule do not exclude other lawful methods available for obtaining
the evidence discoverable under the rule.
Subd.
3. Information Not Subject to Disclosure by Defendant; Work Product. Unless
otherwise provided by these rules, legal research, records, correspondence,
reports or memoranda to the extent they contain the opinions, theories,
or conclusions of the defendant or defense counsel or persons participating
in the defense are not subject to disclosure.
Subd.
4. Failure to Call Witness. The fact that a witness’ name
is on a list furnished by defendant to the prosecution under this
rule shall not be commented on in the presence of the jury.
Rule 9.03 Regulation of Discovery
Subd.
1. Investigations Not to be Impeded. Except as otherwise
provided as to matters not subject to discovery or covered by protective
orders, neither the counsel for the parties nor other prosecution
or defense personnel shall advise persons having relevant material
or information (except the accused) to refrain from discussing the
case with opposing counsel or from showing opposing counsel any relevant
materials, nor shall they otherwise impede opposing counsel’s investigation
of the case.
Subd.
2. Continuing Duty to Disclose.
(a) If
subsequent to compliance with any discovery rule or order, a party
discovers additional material, information or witnesses subject
to disclosure, that party shall promptly notify the other party
of the existence of the additional material or information and the
identity of the witnesses.
(b) Each
party shall have a continuing duty at all times before and during
trial to supply the materials and information required by these
rules.
Subd.
3. Time, Place and Manner of Discovery and Inspection. An
order of the tribal court granting discovery shall specify the time,
place and manner of making the discovery and inspection permitted
and may prescribe such terms and conditions as are just.
Subd.
4. Custody of Materials. Any materials furnished to an attorney
under discovery rules or orders shall remain in the custody of and
be used by the attorney only for the purpose of conducting that attorney’s
side of the case, and shall be subject to such other terms and conditions
as the tribal court may prescribe.
Subd.
5. Protective Orders. Upon a showing of cause, the trial
court may at any time order that specified disclosures be restricted
or deferred, or make such other order as is appropriate. All material
and information to which a party is entitled must be disclosed in
time to afford counsel the opportunity to make beneficial use of it.
Subd.
6. In Camera Proceedings. Upon application of any party
with notice to the adverse party, the trial court upon a showing of
good cause therefor may permit any showing of cause for denial or
regulation of discovery, or portion of such showing, to be made in
camera. A record shall be made of the proceedings. If the tribal court
enters an order granting relief following a showing in camera, the
entire record of such showing shall be sealed and preserved in the
records of the tribal court, to be made available to the reviewing
court in the event of an appeal or habeas corpus proceedings.
Subd.
7. Excision. When some parts of certain material are discoverable
under these rules, and other parts not discoverable, as much of the
material shall be disclosed as is consistent with discovery rules.
Material excised pursuant to judicial order shall be sealed and preserved
in the records of the tribal court to be made available to the reviewing
court in the event of an appeal or habeas corpus proceedings.
Subd.
8. Sanctions. If at any time it is brought to the attention
of the trial court that a party has failed to comply with an applicable
discovery rule or order, the tribal court may upon motion and notice
order such party to permit the discovery or inspection, grant a continuance,
or enter such order as it deems just in the circumstances. Any person
who willfully disobeys a court order under these discovery rules may
be held in contempt.
Subd.
9. Filing. Unless the tribal court orders otherwise
for the purpose of a hearing or trial, discovery disclosures made
pursuant to Rule 9 shall not be filed under the provisions of Rule
28.04.
The
party making the disclosures shall prepare an itemized descriptive
list identifying the disclosures without disclosing their contents
and shall file the list as provided by Rule 28.04.
RULE 10. PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS
Rule
10.01 Pleadings and Motions
Pleadings
in criminal proceedings shall be by complaint or tab charge and the
pleas prescribed by these rules. Defenses, objections, issues, or requests
which are capable of determination without trial on the merits shall
be asserted or made before trial by a motion to dismiss or to grant
appropriate relief.
Rule 10.02 Motions Attacking Jurisdiction of the Tribal Court in
Misdemeanor Cases
A
motion to dismiss for want of personal jurisdiction shall not be made
until after a complaint is filed and a not guilty plea entered unless
the motion is heard and determined summarily. Notice of such a motion
shall be given either orally on the record in court or in writing to
the prosecution. Such notice shall be given no more than seven (7) days
after entry of the not guilty plea or any challenge to the personal
jurisdiction of the tribal court is waived unless the court for good
reason shown grants relief from the waiver. The motion shall be served,
heard and determined.
Rule 10.03 Waiver
The
motion shall include all defenses, objections, issues and requests then
available to the moving party. Failure to include any of them in the
motion constitutes a waiver thereof, but the tribal court for good cause
shown may grant relief from the waiver. However, lack of jurisdiction
over the offense or the failure of the complaint to charge an offense
shall be noticed by the court at any time during the pendency of the
proceeding. The defendant does not waive any defenses or objections
by including them in any motion with other defenses, objections or issues.
Rule 10.04 Service of Motions; Hearing Date
Subd.
1. Service. In gross misdemeanor cases, motions shall be
made in writing and served upon opposing counsel not later than three
(3) days before the omnibus hearing unless the court for good cause
shown permits the motion to be made and served at a later time.
In
misdemeanor cases, except as otherwise permitted by Rule 10.04, Subd.
2, motions shall be made in writing and along with any supporting
affidavits shall be served upon opposing counsel at least three (3)
days before they are to be heard and no more than thirty (30) days
after the arraignment unless the court for good cause shown permits
the motion to be made and served at a later time.
Subd.
2. Hearing Date. In gross misdemeanor cases, unless the
motion is served after the omnibus hearing, it shall be heard at that
hearing and shall be determined as provided by Rule 11.07.
In
misdemeanor cases, if a pretrial conference is held, the motion shall
be heard there unless the court directs otherwise for the purpose
of hearing witnesses or for other good cause. If the motion is not
heard at a pretrial conference, it shall be heard immediately prior
to trial, provided that the court may upon agreement by the prosecutor
and defense counsel summarily hear and determine the motion at arraignment.
If the motion is heard at the arraignment, it need not be in writing,
but a record shall be made of the proceedings and in the court’s discretion
witnesses may be called. The motion shall be determined before trial
as provided by Rule 12.07.
RULE 11. OMNIBUS HEARING IN GROSS MISDEMEANOR CASES
If
the defendant does not plead guilty at the initial appearance before
the tribal court following a complaint or, for a gross misdemeanor under
White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving
While Under the Influence of Intoxicating Liquor or Drugs), following
a tab charge, a hearing shall be held as follows:
Rule 11.01. Place of Hearing
The
hearing shall be held in the tribal court in the judicial district wherein
the alleged offense was committed.
Rule 11.02 Hearing on Evidentiary Issues
Subd.
1. Evidence. If the defendant or prosecution has demanded
a hearing on either of the issues specified by Rule 8.03, the court
shall hear and determine them upon such evidence as may be offered
by the prosecution or the defense.
Subd.
2. Cross-Examination. Upon such hearing, the defendant and
the prosecution may cross-examine the other’s witnesses.
Rule 11.03 Motions
The
tribal court shall hear and determine all motions made by the defendant
or prosecution, including a motion that there is an insufficient showing
of probable cause to believe that the defendant committed the offense
charged in the complaint, and receive such evidence as may be offered
in support or opposition. Each party may cross-examine any witnesses
produced by the other. A finding by the tribal court of probable cause
shall be based upon the entire record including reliable hearsay in
whole or in part.
Rule 11.04 Other Issues
The
omnibus hearing may include a pretrial dispositional conference to determine
whether the case can be resolved without scheduling it for trial. The
tribal court shall ascertain any other constitutional, evidentiary,
procedural or other issues that may be heard or disposed of before trial
and such other matters as will promote a fair and expeditious trial,
and shall hear and determine them, or continue the hearing for that
purpose as permitted by Rule 11.07.
If
the prosecution has given notice under Rule 7.02 of intention to offer
evidence of additional offenses, upon motion a hearing shall be held
to determine their admissibility and whether there is clear and convincing
evidence that defendant committed the offenses.
Rule 11.05. Amendment of Complaint
The
complaint may be amended as prescribed by these rules.
Rule 11.06. Pleas
At
the hearing the defendant may be permitted to plead to the offense charged
in the complaint or to a lesser included offense, or an offense of lesser
degree as permitted by Rule 15.
Rule 11.07. Continuances; Determination of Issues
Upon
motion of the prosecuting attorney or the defendant or upon the tribal
court’s initiative, the court may continue the hearing or any part thereof
from time to time as may be necessary for good cause related to the
particular case. All issues presented at the omnibus hearing shall be
determined within 30 days after the defendant’s appearance under Rule
8 unless a later determination is required for good cause related to
the particular case. When issues are determined, the tribal court shall
make appropriate findings in writing or orally on the record. The issues
presented at the omnibus hearing shall be consolidated for hearing except
as otherwise permitted by these rules.
Rule 11.08 Record
Subd.
1. Recording. A verbatim record of the proceedings shall
be made.
Subd.
2. Transcript. Upon timely application to the reporter,
counsel for the defendant or for the prosecution shall be furnished
with a transcript of the proceedings upon the following conditions:
(a) If
the transcript is to be furnished to defense counsel, the costs
thereof shall be prepaid except when the defendant is represented
by the public defender or assigned counsel, or when the defendant
makes a sufficient affidavit of inability to pay or secure the costs
and the tribal court orders that the defendant be supplied with
the transcript at the expense of the appropriate governmental unit.
(b) The
prosecution shall be furnished with the transcript without prepayment
of costs.
(c) When
a transcript is furnished to counsel, a copy shall be filed with
the clerk of the tribal court.
Subd.
3. Filing. The record and all papers and exhibits in
the proceeding shall be filed or placed in the custody of the clerk
of the tribal court. Upon order of the court any exhibit may be returned
to the party producing it.
Rule 11.09 Plea; Trial Date
If
the defendant is not discharged the defendant shall plead to the complaint
or be given additional time within which to plead. If the defendant
pleads not guilty, a trial date shall then be set. A defendant shall
be tried as soon as possible after entry of a not guilty plea. On demand
made in writing or orally on the record by the prosecuting attorney
or the defendant, the trial shall be commenced within sixty (60) days
from the date of the demand unless good cause is shown upon the prosecuting
attorney’s or the defendant’s motion or upon the tribal court’s initiative
why the defendant should not be brought to trial within that period.
The time period shall not begin to run earlier than the date of the
not guilty plea. If trial is not commenced within 120 days after such
demand is made and the not guilty plea is entered, the defendant, except
in exigent circumstances, shall be released subject to such non-monetary
release conditions as may be required by the tribal court under Rule
6.02, Subd. 1.
Rule 11.10 Exclusion of Witnesses
Before
or during any omnibus or other pretrial hearing or proceeding, witnesses
may be sequestered or excluded from the courtroom, prior to their appearance,
in the discretion of the tribal court.
RULE 12. PRETRIAL CONFERENCE AND EVIDENTIARY HEARING IN MISDEMEANOR
CASES
Rule
12.01. Pretrial Conference
A
pretrial conference may be held in such cases and at such time as the
tribal court orders to consider the motions and other issues referred
to in Rules 12.02 and 12.03. Such motions and other issues shall be
heard immediately prior to trial whenever there has been no pretrial
conference or whenever the tribal court has so ordered for the purpose
of hearing witnesses or for other good cause.
Rule 12.02. Motions
The
tribal court shall hear and determine all motions made by the defendant
or prosecution and receive such evidence as may be offered in support
or opposition. The defendant may offer evidence in defense, and the
defendant and prosecution may cross-examine the other’s witnesses.
Rule 12.03. Other Issues
The
tribal court shall ascertain any other constitutional, evidentiary,
procedural or other issues that may be heard or disposed of before trial
and such other matters as will promote a fair and expeditious trial,
and shall hear and determine them, or continue the hearing for that
purpose.
If
the prosecution has given notice under Rule 7.02 of intention to offer
evidence of additional offenses, upon motion a hearing shall be held
to determine their admissibility and whether there is clear and convincing
evidence that defendant committed the offenses.
Rule 12.04. Hearing on Evidentiary Issues
Subd.
1. Evidence. If the defendant or the prosecution has demanded
a hearing on the issue specified by Rule 7.01, the tribal court shall
hear and determine the issue upon such evidence as may be offered
by the prosecutor or the defense.
Subd.
2. Cross-Examination. Upon such hearing, the defendant and
the prosecution may cross-examine the other’s witnesses as to the
evidentiary and identification issues raised as specified in Rule
7.01.
Subd.
3. Time. Any evidentiary hearing shall be held separately
from the trial when the trial is to be before a jury and in the discretion
of the tribal court may be held either separately or as part of the
trial when the trial is to the court. Any separate hearing shall be
held immediately prior to trial unless the tribal court for good cause
otherwise orders.
Rule 12.05. Amendment of Complaint
The
complaint, if any, may be amended at the pretrial conference as prescribed
by these rules.
Rule 12.06. Pleas
At
the pretrial conference the defendant may be permitted to withdraw any
prior plea and to enter a plea of guilty to the offense charged or such
other different offense as permitted in Rule 15.08.
Rule 12.07. Continuances; Determination of Issues
The
tribal court may continue the pretrial conference as necessary and for
the purpose of taking testimony or other good cause, and may continue
the determination of any issues or motions until the day of trial. All
motions and issues including those raised at the evidentiary hearing
shall be determined before trial begins unless otherwise agreed to by
the prosecution and the defense. When the motions and issues are determined,
the tribal court shall make appropriate findings in writing or orally
on the record.
Rule 12.08. Record
Subd.
1. Record. Unless waived by counsel, a verbatim record of
the proceedings at the evidentiary hearing shall be made.
Subd.
2. Transcript and Filing. Transcript and filing shall be
governed by the provisions of Rule 11.08, Subd. 2 and Subd. 3.
RULE 13. ARRAIGNMENT IN GROSS MISDEMEANOR CASES
The
arraignment shall be conducted as follows:
Rule
13.01. In Open Court
The
arraignment shall be conducted in open court.
Rule 13.02. Right to Counsel
If
the defendant other than a corporation appears without counsel, the
tribal court shall advise the defendant of the right to counsel, and
when required, shall appoint counsel pursuant to Rule 5.02.
Rule 13.03. Copy and Reading of Charges
The
defendant shall be provided with a copy of the complaint if it has not
been previously provided. The complaint shall be read to the defendant
unless the reading is waived. For gross misdemeanors under White Earth
Band Motor Vehicles & Highways Code Section 1-6-26 (Driving While
Under the Influence of Intoxicating Liquor or Drugs) prosecuted by tab
charge pursuant to Rule 4.02, Subd. 5(3), the tab charge shall be read
to the defendant.
Rule 13.04. Plea
The
defendant shall be called on to plead or may be given time to plead.
Rule 13.05. Record
A
verbatim record of the arraignment shall be made.
RULE 14. PLEAS
Rule
14.01. Pleas Permitted
A
defendant may plead as follows:
(a) Guilty.
(b) Not
guilty.
(c) Not
guilty by reason of mental illness or mental deficiency.
(d) Double
jeopardy or that prosecution is barred by any provision of the White
Earth Band Criminal Code, either of which may be pleaded with or without
the plea of not guilty.
Rule 14.02. Who May Plead
Subd.
1. By an Individual in Gross Misdemeanor Cases. A plea to
a complaint or, for a gross misdemeanor under White Earth Band Motor
Vehic